Appeal from the Superior Court of the District of Columbia (FEL7805-04) (Hon. Harold L. Cushenberry, Jr., Trial Judge)
The opinion of the court was delivered by: Nebeker, Senior Judge:
Submitted September 15, 2011
Before THOMPSON, Associate Judge, and PRYOR and NEBEKER, Senior Judges.
On December 16, 2008, a jury found appellant Andre Cooper guilty of first-degree fraud, two counts of uttering, and two counts of first-degree theft as a result of his involvement in two transactions designed to obtain hardwood flooring by tendering fraudulent checks. The trial court first dismissed the charges with prejudice, but on motion of the government, reinstated them. On appeal, Cooper argues that his trial date was set after the 180-day time frame provided by the Interstate Agreement on Detainers (hereinafter "IAD") had lapsed, and therefore, the court should not have vacated its decision to dismiss the charges against him with prejudice. He also argues that there was insufficient evidence connecting him to the charges relating to one of the transactions (the December 14th delivery). We disagree and affirm.
Raymond Lynn is one of the owners of Cherokee Wholesalers, Inc. ("Cherokee"), a distributor of hardwood flooring products, and was the company's executive vice president for sales and marketing in 2004. In December 2004, two of the company's regular customers were D.C. Floors, Inc., in Washington, D.C., and Martin Floors, in Hyattsville, Maryland. On December 15, 2004, Linda Tax, one of Lynn's employees, took an order for hardwood flooring over the phone, to be delivered to a job site at 3618 11th Street, Northwest, Washington, D.C. The charge for the product was $6,274.80. The person identified himself as "Frank" from D.C. Floors. Tax thought there was something "messed up" about the order because she had taken an order for delivery of hardwood floors to the same address a couple of days earlier. She notified Lynn of her concern.
Lynn contacted Metropolitan Police Department (hereinafter "MPD") Detective Vince Tucci, a detective with MPD's Financial Crimes and Fraud Unit. The detective organized a sting operation. On December 16, 2004, Cherokee's inventory manager, Larry Parks, drove the hardwood flooring to the requested address. Although he repeatedly knocked on the door of 3618 11th Street, no one answered the door. Parks then called the number on the invoice, 202-550-9267, and the man who responded said he would be there shortly. Thereafter, a man walked down the street toward Parks. Parks recognized the man as having the same voice as the person he talked to on the phone. The man, later determined to be appellant Andre Cooper, gave Parks a check for the flooring, and the signed the invoice as "Wesley." Cooper directed Parks to offload the flooring into an alley. After taking a few cartons of the flooring off of the truck, Parks notified Detective Tucci that the delivery had been completed. Moments later, the police apprehended Cooper and his cellular telephone ("cell phone") was seized. Parks gave the check and the invoice to Detective Tucci. Cooper was released on personal recognizance.
Several months later, Lynn met with Detective Tucci and an Assistant United States Attorney to review other invoices Lynn suspected were related to fraudulent transactions. There was an invoice dated December 13, 2004, for a delivery made on December 14, 2004, to the same address as the December 16th delivery. "Frank" also placed this request and told Cherokee that he was calling from Martin Floors. Shortly thereafter, "Frank" called again, and placed an additional order for hardwood flooring, to be delivered to the same address.
On this day, "Frank" provided a Maryland number (301-526-9423) as the contact number for the invoice. The combined bill for the two orders was $5,567.50. When the flooring was delivered on the 14th, the man who accepted the delivery signed both invoices as "Wesley." The man also gave the Cherokee delivery person a check for the amount due, which was later returned for insufficient funds.
It should be pointed out that Detective Tucci and the MPD handled the search of the cell phone in a commendable way. Detective Tucci seized Cooper's cell phone on the 16th. Instead of immediately accessing the cell phone's memory bank for evidence, the detective first obtained a warrant to search its memory bank. After obtaining a search warrant, the detective accessed the seized phone's memory bank and telephone records, and the telephone records of the Maryland phone number that was associated with the December 13, 2004, order. We need not pass judgment on whether the search warrant was required to search the cell phone seized incident to an arrest as no issue is presented on appeal regarding the denial of appellant's motion to suppress. See generally State v. Carroll, 778 N.W.2d 1 (Wis. 2010) (for the decision of a plethora of issues relating to proof of criminality by cell phone).
The records reveal an incriminating tapestry of cell phone calls which demonstrate how this method of communication has changed not only the way fraud can be perpetrated, but how it can be detected. It seems that in the time of exclusive land telephone lines nothing short of a warranted wire tap could have broken this scheme and allowed successful prosecution.*fn1
The records divulge a series of calls between Cooper's 202 phone, the Maryland number, and Cherokee around the same approximate times the orders were placed and flooring delivered. The morning of December 14th, Cooper's cell phone was used to call Cherokee three times, and it was used to call Cherokee numerous other times between December 15th and 16th. Cooper's cell phone was also used to call the Maryland number four times on December 13th, and twenty times on December 14th. The Maryland number called Cooper's cell phone nineteen times on December 13th, and thirty-one times on December 14th. Many of the calls between Cooper's cell phone and the Maryland cell phone were interspersed with calls to Cherokee. The telephone records also establish that on December 15th, Cooper called the Maryland number three times, coinciding with the times Cooper called Cherokee. The Maryland number called Cooper's number thirteen times that same morning. On the 16th, Cooper called the Maryland number eight times. Cooper also called the Maryland number many times shortly after he was stopped by the police.
Cooper "freely concedes that the government had sufficient proof" to establish that he was involved with the December 16, 2004 transaction, received the delivery, used a cell phone to communicate with the delivery person, tendered a fraudulent check, and received the hardwood flooring. He argues, however, that there is insufficient proof of his participation in the December 14, 2004 transaction. He contends that "[s]imply because he had a tool of the scheme -- one of the ...