United States District Court, S.D. New York
April 29, 2004.
UNITED STATES OF AMERICA, -against- JAMES WAGNER, Defendant
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
On September 26, 2003, James Wagner ("Wagner") pleaded guilty to one
count of Credit Card Fraud, in violation of 18 U.S.C. § 1029(a)(5), a
class C felony.
The Offense Conduct
This statement of facts draws on the Presentence Investigation Report
prepared by the U.S. Probation Office.
On January 21, 2003, Wagner entered Saks Fifth Avenue at the Short
Hills Mall in Short Hills, New Jersey and purchased two Cartier watches
with a total value of $6,950 using a Chase Bank card in the name of
another person ("the Cardholder"). In making the purchase, Wagner signed
a charge card form in the name of the Cardholder. During the course of processing the transaction, the Saks Fifth Avenue
store clerk became suspicious and contacted a store investigator. The
investigator called the bank card issuer and spoke with a bank
representative. The bank representative reported to the investigator that
he had called the Cardholder at home and spoken to him. The Cardholder
stated that he had not been at the Short Hills Mall at the time and had
not authorized anyone else to use his card.
Following the call to Chase Bank, the investigator contacted the
Millburn, New Jersey Police Department; a detective and another member of
the Millburn Police Department responded to the call. The detective then
called the victim from a Saks Fifth Avenue security office in the store
to confirm that he was not at the Short Hills Mall and had not authorized
anyone else to use his card.
Wagner was then approached by a Saks Fifth Avenue store investigator
who identified himself as such. Wagner immediately walked away from the
investigator and then began running toward the parking garage. While
running, Wagner dropped the two watches he had purchased along with the
The detective and his partner approached Wagner in the parking garage
and arrested him and read him his Miranda warning. Wagner then
stated: "He told me it was good." The case was then referred to United States Postal Inspectors, who
reviewed the details of the arrest and subsequently contacted a Chase
Bank fraud investigator who informed the postal inspectors that the
Cardholder never received the bank card used by Wagner. The fraud
investigator then provided a report of all purchases made with the bank
card. These purchases, totaling approximately $13,000, were made in the
Southern District of New York and elsewhere from January 18, 2003 through
January 21, 2003.
Wagner was arrested on April 23, 2003 in the Southern District of New
York. After his arrest, the government determined that Wagner was not
responsible for all the fraudulent charges to the credit card but that he
is responsible for $7,231.06 in actual loss.
The intended victim of the instant offense is J.P. Morgan Chase,
formerly known as Chase Bank. It has suffered an actual loss of
Wagner was reportedly born in 1948 in Peekskill, New York. He was
raised in a middle-class household in Westchester County. Wagner reports
that he graduated from the State University of New York at Albany in 1971 with a bachelor's degree in biology.
Wagner currently resides in a one-bedroom apartment on the Upper East
Side of Manhattan.
In 1994, Wagner developed Lyme disease through a tick bite. In 2000, he
was bitten again by a tick and his condition worsened. The disease has
manifested itself with neurological complications, a heart condition and
a diminished immune system. As a result, Wagner requires a daily regimen
of medication. Wagner also reports that he has been diagnosed with
Chronic Fatigue Syndrome. He also has frequent liver-function tests to
determine the impact of his medication on his liver.
Wagner has been self-employed since April 2003. He reportedly serves as
a consultant for real estate developers where he arranges for financing
for land development projects. He reports that he receives a percentage
of the deal and that he has earned approximately $75,000 from this
Wagner also reported that he owned and operated his own "head-hunting"
business from 1979 to 1997 in Albany, New York, and that from 1999 to
2001, he owned and operated a men's fashion store in Manhattan. Financial Condition Ability to Pay
According to a signed financial affidavit provided by Wagner, he has a
net worth of $6,000 and a net monthly cash flow of $3,898.00.
Adjustment for Acceptance of Responsibility
On the advice of counsel, Wagner declined to provide a statement
regarding his involvement in the instant offense, and chose to rely on
his plea allocution. However, Wagner subsequently submitted a letter to
the Court in which he apologizes to the Court, the government and his
loved ones for his actions, which he says are a source of great shame to
Offense Level Computation
The November 5, 2003 edition of the Guidelines Manual has
been used in this case.
The guideline for a violation of 18 U.S.C. § 1029(a)(5) is found in
§ 2B1.1, which provides for a base offense level of 6 pursuant to
§ 2B1.1(a)(2). Because the instant offense involved a loss of $7,231.06, the offense
level is increased two levels, to 8, pursuant to § 2B1.1(b)(1)(B).
Based on Wagner's plea allocution and his statement of acceptance of
responsibility, he has shown recognition of responsibility for his
offense. Because of Wagner's timely notification of his intention to
plead guilty, thus allowing the government to allocate its resources more
efficiently, pursuant to § 3E1.1(a), the offense is reduced two
levels, to 6.
Available information indicates that the defendant was represented by
counsel in all matters resulting in conviction, unless otherwise noted.
On May 12, 1978, Wagner was arrested and charged with Conspiracy to
Possess Cocaine in the United States District Court for the Southern
District of Florida. He was sentenced to two years probation. Under §
4A1.2(e)(3), no criminal history points are imposed.
On January 24, 1996, Wagner was arrested and charged with Forgery in
the Second Degree in the Supreme Court, New York County. He was sentenced
to five years probation. On April 18, 2000, a violation of probation was filed. Two days later, the warrant was
vacated and probation was continued. Under §§ 4A1.1(c) and
4A1.2(e)(2), one criminal history point is imposed.
On January 21, 2003, Wagner was arrested and charged with a Local
Ordinance Violation in Millburn Municipal Court in Millburn, New Jersey.
He was sentenced to a $1,030 fine and court costs. Under § 4A1.2(c)
(1), no criminal history points are imposed.
Criminal History Category
The total of the criminal history points is one. According to the
sentencing table at Chapter 5, Part A, one criminal history point
establishes a Criminal History Category of I.
Applicable Guidelines Range
The provision under which Wagner pleaded guilty provides for a maximum
sentence of 15 years pursuant to 18 U.S.C. § 1029(a)(5). Based on a
total offense level of 6 and a Criminal History category of I, the
guideline range for imprisonment is 0 to 6 months. Because the offense is a felony, from one to five years of probation
are authorized under 18 U.S.C. § 3561(c)(1). In addition, one of the
following must be imposed as a condition of probation unless
extraordinary circumstances exist: a fine, restitution, or community
service, pursuant to 18 U.S.C. § 3563(a)(2).
Wagner is eligible for probation because the applicable guideline range
is Zone A of the Sentencing Table, pursuant to § 5B1.1(a)(1). If
probation is imposed, the term must be at least one year, but not more
than five years because the offense level is six, pursuant to §
The maximum fine is $250,000, pursuant to 18 U.S.C. § 3571. The
fine range for the instant offense is from $500 to $5,000, pursuant to
§ 5E1.2(c)(3)(A). A special assessment of $100 is mandatory,
pursuant to 18 U.S.C. § 3013.
Subject to the defendant's ability to pay, in imposing a fine, the
Court shall consider the expected costs to the government of any
imprisonment, probation, or supervised release pursuant to §
5E1.2(d)(7). The most recent advisory from the Administrative Office of
the United States Courts suggests a monthly cost of $1,931.97 to be used
for imprisonment, a monthly cost of $292.21 for supervision, and a
monthly cost of $1,590.66 for community confinement. Full restitution to the victim is required under 18 U.S.C. § 3663A
and 3664, and § 5E1.1(a)(1). Restitution in the amount of $7231.06 is
owed to J.P. Morgan Chase and should be forwarded to the attention of
John Jeter at the Chase BankCard Services, P.O. Box 29022, Phoenix, AZ
In light of the foregoing, Wagner will be sentenced to three years
probation. Wagner is also ordered to make full restitution to the victim.
A sentence of imprisonment is inappropriate given Wagner's debilitating
medical condition, and because Wagner has accepted responsibility for his
As mandatory conditions of probation, Wagner shall (1) not commit
another federal, state or local crime; (2) not illegally possess a
controlled substance; and (3) not possess a firearm or destructive
device. The mandatory drug testing condition is suspended based on the
Court's determination that the defendant poses a low risk of future
The defendant shall be subjected to the standard conditions of
supervision (1-13), with the following special conditions: 1. Wagner shall provide the probation officer with
access to any requested financial information.
2. Wagner shall not incur new credit charges or
open additional lines of credit without the
approval of the probation officer unless the
defendant is in compliance with the installment
The defendant is to report to the nearest Probation Office within 72
hours of release from custody and is to be supervised by the district of
Wagner shall pay a mandatory special assessment of $100, which shall be
This sentence is subject to further hearing on May 4, 2004, at 10:00
It is so ordered.
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