Case 1:15-cr-00158-ELR-JFK Document 30 Filed 02/05/16 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
U NITED S TATES OF A MERICA

Criminal Action No.

v.

1:15-CR-158-ELR-JFK

J OHN L ETCHER E DENS

United States’ Response to Defendant’s Sentencing Memorandum
The United States of America, by John A. Horn, United States Attorney, and
Jolee Porter, Assistant United States Attorney for the Northern District of
Georgia, files this Response to Defendant’s Sentencing Memorandum. The
government argues that the pre-sentence report correctly calculates Defendant’s
Guideline range of 27-33 months’ confinement. In the alternative, an upward
variance to 27 months pursuant to the factors listed in 18 U.S.C. § 3553(a) is
appropriate to ensure Defendant’s sentence is commensurate with his criminal
history, pattern of conduct, and the crimes in this case.
PROCEDURAL HISTORY
On May 6, 2015, a grand jury for the Northern District of Georgia returned a
seven-count indictment against Defendant. (Doc. 1.) The indictment charges
Defendant with false impersonation of a Deputy United States Marshal from
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October 21, 2014 through November 26, 2014, in violation of 18 U.S.C. § 912. (Id.)
Defendant was arraigned on the indictment on May 12, 2015. (Doc. 5.) On
September 24, 2015, Defendant entered a plea of guilty to the first six counts of
the indictment, which carry a combined statutory maximum punishment of
eighteen (18) years’ imprisonment. (Doc. 24-1 (under seal); PSR at Part D). The
final Pre-Sentence Investigation Report (“PSR”) was prepared and provided to
the parties on December 2, 2015.
In the PSR, the Probation Officer calculated the total offense level for
Defendant to be 14. This consists of a base offense level of 6 under U.S.S.G.
§ 2J1.4, increased by 6 levels under U.S.S.G. § 2J1.4(b)(1) because the
impersonation was committed for the purpose of conducting an unlawful search,
increased by 5 levels under U.S.S.G. § 3D1.4 because the separate counts with
separate victims do not group, and reduced by 3 levels under U.S.S.G. § 3E1.1 for
acceptance of responsibility. The Probation Officer determined that Defendant
qualified for seven criminal history points under U.S.S.G. § 4A1.1, placing him in
criminal history category IV. With a total offense level of 14 at criminal history
category IV, the resulting advisory guidelines sentencing range would be 27 to 33
months’ imprisonment.

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On February 3, 2016, Defendant filed a Sentencing Memorandum arguing that
the PSR incorrectly calculates the Guidelines Range. (Doc. 29). Defendant is
scheduled to be sentenced on February 10, 2016.
FACTS
Defendant impersonated a U.S. Marshal seven times from October 21, 2014
through November 26, 2014 in order to obtain location information on a total of
fourteen victims. (See Doc. 1; PSR at ¶¶ 6-8). Defendant sought “Real-Time
Location of the Mobile Device (E911 Locator)” information on private phones.
(See e.g. Exigent Requests submitted by Defendant to T-Mobile (Oct. 21, 2014 –
Nov. 26, 2014) (attached as Gov. Ex. 7)). 1 E911 data provides precise information,
in the form of geographic coordinates, about the location of a target phone. 2 (See
e-mail from Simone.Ray8@t-mobile.com to jeff.cromer@gafugitivetaskforce1.net
(providing exact location of 404-988-XXXX, “Lat: 33.754338 Lon: -84:470077”)
(attached as Gov. Ex. 1)). In order to obtain that information, Defendant not only

Gov. Ex. 7 has been filed under seal due to the sensitive nature of its contents. A
copy has been provided to the court and defense counsel.
1

E911 data is more precise than cell-site information, which identifies the cell tower
used to route communications to or from the target phone and permits investigators to
determine the general area in which the target phone is located at the time that a
communication occurs. See United States v. Davis, 785 F.3d 498, 501 (11th Cir.) cert.
denied, 136 S. Ct. 479, 193 L. Ed. 2d 349 (2015).
2

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fraudulently represented himself as a U.S. Marshal, but he also told T-Mobile
that “[t]he urgency of the situation (and/or other factors) renders it unfeasible to
obtain a search warrant or probable cause court order” but that a “warrant [was]
requested and coming.” (Gov. Ex. 7). Defendant told T-Mobile that extreme and
dangerous circumstances necessitated T-Mobile providing location information
before a search warrant could be obtained. (Id.). Specifically, Defendant
claimed:
• on October 21, 2014, “a group of 11 abducted a 7 year child in south
Atlanta. This child’s life in obvious danger”;
• on October 29, 2014, “a 5 year old has been abducted and is being held
hostage in Georgia, North Carolina, or Michigan”;
• on November 4, 2014 , “Atlanta drug war escalates again. 3 children
taken at gunpoint. Very much life threatening. Children abducted and
the suspects all go in different directions”;
• on November 6, 2014, “[t]he last of 3 abducted children is still
missing”;
• on November 12, 2014, “[e]arlier this afternoon in Atlanta 3 children
were abducted by drug gangs. These kids are in extreme danger at this
time”;
• on November 13, 2014, he again advised that “[e]arlier this afternoon
in Atlanta 3 children were abducted by drug gangs. These kids are in
extreme danger at this time”;

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• on November 26, 2014, “[a]n emotionally unstable Houston man has
kidnapped a 9 year old child in Georgia. He is armed and dangerous
and has plane access.”
(Id.; PSR at ¶ 7). Upon his arrest on May 7, 2015, Defendant admitted to
impersonating a U.S. Marshal. (PSR at ¶ 9). Defendant explained that he “felt
the Marshals owed [him]” from a previous arrest where he fought with U.S.
Marshals as they attempted to take him into custody. (Id.).
Defendant’s victimization of others extended beyond fraudulently obtaining
individuals’ private location information and using that information to find those
individuals. Defendant called one victim and “stated [that Defendant was] from
the U.S. Marshal’s,” and “began to call everyday 3 to 4 times a day, threatening.”
(“RJ” Victim Stmt.) 3 Defendant told that victim, “RJ,” that he “had a warrant for
[her] arrest, . . . came to [her] home [at] all hours of the night[,] and showed up at
[her] place of employment.” (Id.).
The victimization of RJ was not Defendant’s first time harassing another
person. On February 25, 2011, Defendant was convicted of aggravated stalking
and harassing phone calls in the Superior Court of Forsyth County. (PSR at
¶ 60). In that case, “in violation of a temporary protective order,” Defendant

The full victim impact statement submitted by “RJ” has been submitted to the
Court.
3

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“serveilled [sic] and contacted Lisa Edens for the purpose of harassing and
intimidating her” in 2009. (Id.). Defendant was simultaneously convicted of
forgery for submitting a forged doctor’s “Action Form” to Georgia Probation
Management. (Id. at ¶ 61). For the two separate convictions, Defendant was
“sentenced to confinement for the period of five (5) years.” (State v. Edens, 10CR-212 (Mar. 3, 2011) (Gov. Ex. 2)). Under the First offender Act, however,
Defendant was permitted to serve the five year sentence on probation provided
that he complied with the terms of his probation. (Id.). Under those terms,
Defendant was required not to “violate the criminal laws of any governmental
unit.” (Id.). Defendant’s probation under the First Offender Act was revoked on
July 15, 2015 after he was indicted in the instant case. (PSR at ¶ 60-61).
Defendant is scheduled to be released from state custody for his violations of
state law on February 24, 2016. (PSR at ¶ 60-61).
Defendant harassed yet another victim the prior year in 2008. In 2009, a
default judgment was entered against Defendant, also known as “John
Anderson,” in the amount of $33,312.00 in the Eastern District of California.
(Hartung v. Anderson, a/k/a John Edens, et al., Findings and Rec., 1:08-cv-00960, ECF
No. 81 at 18 (June 26, 2009) (Gov. Ex. 3); see also, Hartung v. Anderson, a/k/a John
Edens, et al., Order Adopting Findings and Rec., 1:08-cv-00960, ECF No. 83 at 2
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(Sept. 1, 2009) (Gov. Ex. 4)). Similar to the facts in this case, Defendant used TMobile to obtain private citizen information and employed that information to
find, harass, and threaten the victim. The Court’s Findings and
Recommendations state:

On or about January 14, 2008, Anderson [a/k/a John Edens] allegedly
contacted T-Mobile and identified himself as Plaintiff’s father requesting
that T-Mobile add him as a user on Plaintiff’s T-Mobile account.
Thereafter, Defendant allegedly used information obtained from T-Mobile
including Plaintiff’s home address to begin unlawful and harassing
collection attempts by frequently calling and text messaging Plaintiff.
Specifically, the complaint alleges that on January 16, 2008, through
January 22, 2008, Anderson began calling Plaintiff in an attempt to collect
the debt. On more than one occasion, Anderson called and/or sent text
messages to Plaintiff several times a day in a harassing manner. Plaintiff
told Anderson to cease and desist several times. Over the course of these
five days, Defendant allegedly sent Plaintiff a total of 17 messages in
which he was extremely angry, menacing, and intimidating. These
messages included the following:
. . .
4) After Plaintiff told Anderson to cease and desist communication
he called her back continuously. Plaintiff instructed Anderson to
cease, each time to no avail;
5) Anderson falsely stated that he would have Plaintiff arrested if
she did not let him have the car;
6) On January 17, 2008, Anderson sent the following text message to
Plaintiff : “Turn the car in or I [sic] send the Sheriff, you [sic] illegally
took the car out of state I cant [sic] verify insurance or address.”
Received 11:15 am, sender 5000-John;
. . .
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25) On January 20, 2008, Anderson sent the following text message
to Plaintiff: “[I]’m hoping to God you see the light and figure out I
will just take your car.” Received 5:49 pm, Sender 5000- R & J
Recovery;
26) On January 20, 2008, Anderson sent the following message to
Plaintiff : “Porky Pig 200 pound slob in a double wide. Figure. I got
some picture messages of you today. Oink oink. Ryan must like
mountain climbing.” Received 5:57 pm, Sender 5000;
27) On January 22, 2008, Plaintiff called Anderson and told him to
stop calling. In response, Anderson stated, “I don’t have to stop it’s
my job”;
(Id. at 2-5). Defendant openly admitted to harassing the victim about her weight
when he was interviewed about the case on ABC’s 20/20. (See Joseph Rhee and
Alexa Valenti, Debt Collector Owes Over $33K for Making Woman’s Life ‘Hell’, ABC
News (Nov. 28, 2014), available at http://abcnews.go.com/Business/debtcollector-owes-33k-making-womans-life-hell/story?id=27093191 (Gov. Ex. 5)).
Defendant detailed, “[the victim] said, ‘I have a refund coming.’ I said, ‘A tax
refund or a Jenny Craig refund?’ ... meaning that she was overweight.” (Id.
(video interview embedded)). Just three years earlier, on June 2, 2006, Defendant
was convicted of battery after he “caused visible bodily harm to Lisa Edens, his
spouse, by kicking her in the shin and grabbing her arms.” (PSR at ¶ 59).
ARGUMENT
The PSR correctly calculates Defendant’s Guideline Range where (1)
Defendant impersonated a U.S. Marshal for the purpose of obtaining private
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citizens’ real-time location information, which constitutes a search under the
Guidelines, (2) each count involves separate victims, so the individual counts of
conviction should not group, and (3) Defendant does not claim his criminal
history score was incorrectly calculated. A sentence within Defendant’s
Sentencing Guideline range of 27 to 33 months is, therefore, appropriate. Even if
this Court were to find that Defendant’s guideline range was incorrectly
calculated, an upward variance would be appropriate in light of both the
seriousness of the offense in this case and Defendant’s history of stalking and
harassing victims. See 18 U.S.C. § 3553(a).
1. THE PSR CORRECTLY CALCULATED DEFENDANT’S GUIDELINE
RANGE OF 27 TO 33 MONTHS
a. The PSR Correctly Concluded Defendant’s Impersonation was
Committed for the Purpose of a Search Under the Guidelines
Under the Sentencing Guidelines, Defendant’s offense level should be
increased by six-levels because the “impersonation was for the purpose of
conducting an unlawful arrest, detention, or search.” U.S.S.G. § 2J1.4(b)(1). The
Sentencing Guidelines do not define the term “search,” nor do they limit it to a
Fourth Amendment search. Even if this Court entertains Defendant’s
interpretation of “search” in U.S.S.G. § 2J1.4(b)(1), Defendant conducted a search
where he sought “Real-Time Location,” or “E911” data, of cell phones belonging
to private citizens using exigent request forms stating that a search warrant was
pending.
To limit “search” in U.S.S.G. § 2J1.4(b)(1) to only Fourth Amendment searches
would either render the enhancement virtually useless, or read language into the
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Guideline that the Sentencing Commission has opted not to include. The Fourth
Amendment “proscribes only governmental action” United States v. Bomengo, 580
F.2d 173, 175 (5th Cir. 1978), or (2). Therefore, under Defendant’s proposed
reading of the Guideline, private citizens could not receive the enhancement, as
“a search by a private individual for purely private reasons does not raise Fourth
Amendment implications.” Id. Alternatively, Defendant’s reading of the
Guideline requires the addition of the words “what would be for a government
actor” before the term “search” in § 2J1.4(b)(1). “To properly interpret the
Sentencing Guidelines, [a Court] begins with the language of the Guidelines,
considering both the Guidelines and the commentary.” United States v. Panfil, 338
F.3d 1299, 1302 (11th Cir.2003) (citation omitted). “The language of the
Sentencing Guidelines, like the language of a statute, must be given its plain and
ordinary meaning,” United States v. Sutton, 302 F.3d 1226, 1227 (11th Cir.2002),
because “[a]s with Congress, we presume that the Sentencing Commission said
what it meant and meant what it said,” United States v. Shannon, 631 F.3d 1187,
1190 (11th Cir.2011) (quotation marks omitted). When interpreting the
Guidelines, the Eleventh Circuit applies the “traditional rules of statutory
construction, including the prohibition on rewriting statutes.” Shannon, 631 F.3d
at 1189 (citation omitted). If the Sentencing Commission wanted to include
additional language limiting the definition of “search” to a Fourth Amendment
search, it could have done so. The Sentencing Commission, however, chose not
to limit the definition of “search” in the Guidelines. A Fourth Amendment
search, therefore, is not required under U.S.S.G. § 2J1.4(b)(1).
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Even if this Court entertains Defendant’s premise that a “search” under the
Guidelines is confined to a Fourth Amendment search, Defendant impersonated
a U.S. Marshal for the purpose of conducting a search where he sought “RealTime Location,” or “E911” data, of cell phones belonging to private citizens.
Defendant’s own representations to T-Mobile acknowledged that the exigent
requests were for the purpose of searches when he submitted forms stating,
“[t]he urgency of the situation (and/or other factors) renders it unfeasible to
obtain a search warrant or probable cause court order” and that a “[search]
warrant [was] requested and coming.”
Certainly, there has been a robust debate and fluctuation in the law relating to
whether the Fourth Amendment applies to various types of location data. The
Supreme Court, however, resolved much of the debate in 2012 in United States v.
Jones, 132 S.Ct. 945 (2012), when it held that “the Government's installation of a
GPS device on a target's vehicle, and its use of that device to monitor the
vehicle's movements, constitutes a search” within the meaning of the Fourth
Amendment. Following the Jones decision, the Department of Justice advises
Assistant United States Attorneys to obtain a search warrant when seeking E911
location information on cellular phones. Further, under Department of Justice
policy “law enforcement agencies must now obtain a search warrant supported
by probable cause” in order to use a cell-site simulator 4 to locate a known cellular
device. (“Department of Justice Policy Guidance: Use of Cell-Site Simulator
Cell-site simulators function by transmitting as a cell tower and help identify the
location of a cellular device.
4

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Technology” (Sept. 2015), available at
http://www.justice.gov/opa/file/767321/download (attached as Gov. Ex. 6)).
Defendant would not have obtained the E911 location data of his victims without
affirming that exigent circumstances required T-Mobile to provide the
information before a search warrant could be obtained, and that a search warrant
was pending. (See Gov. Ex. 7).
Defendant relies on Davis, which held that the defendant had no expectation
of privacy in business records showing historical cell-site information. United
States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc). Historical cell-site
information identifies the tower used to route communications to or from the
target phone. See United States v. Davis, 785 F.3d 498, 501 (11th Cir.) cert. denied,
136 S. Ct. 479, 193 L. Ed. 2d 349 (2015). Taken together with the location of the
relevant cell towers, these records permit investigators to determine the general
area in which the target phone is located at the time that a communication
occurs. See id. In contrast, in this case, Defendant sought E911 data, which
provides more precise information, in the form of geographic coordinates, about
the location of a target phone. (See e.g. Gov. Exs. 1, 7). Those precise coordinates
pointed to the victim’s real-time location (assuming she was with her cell phone).
Davis, therefore, is distinguishable and does not apply to the facts of this case.
b. The PSR Correctly Concluded the Individual Counts of Conviction
Should Not Group Because Each Count Involved Individual Victims
The PSR correctly calculated and applied the multiple count adjustment in
this case. (See PSR ¶ 49 (citing U.S.S.G. §§ 3D1.2 and 1.4)). Whether 18 U.S.C.
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§ 912 offenses are grouped requires a “case-by-case determination” that is “based
upon the facts of the case and the applicable guidelines (including specific
offense characteristics and other adjustments).” U.S.S.G. § 3D1.2(d). The
Guidelines provide that “[a]ll counts involving substantially the same harm shall
be grouped together into a single Group.” U.S.S.G. § 3D1.2. Providing further
guidance, the Guidelines continue:
Counts involve substantially the same harm within the meaning of this
rule:
(a) When counts involve the same victim and the same act or transaction.
(b) When counts involve the same victim and two or more acts or
transactions connected by a common criminal objective or constituting part
of a common scheme or plan.
(c) When one of the counts embodies conduct that is treated as a specific
offense characteristic in, or other adjustment to, the guideline applicable to
another of the counts.
(d) When the offense level is determined largely on the basis of the total
amount of harm or loss, the quantity of a substance involved, or some
other measure of aggregate harm, or if the offense behavior is ongoing or
continuous in nature and the offense guideline is written to cover such
behavior.
Id. Applying § 3D1.2, the Probation Office concluded that because each count
involves separate victims, the counts should not be grouped together. (PSR at
¶ 49).
Although counts One through Six of the Indictment are connected by “a
common criminal objective or constituting part of a common scheme or plan,”
the conduct involves separate victims and, therefore, separate harms. U.S.S.G.
§ 3D1.2(b). Specifically, in each count Defendant impersonated a United States
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Marshal in order to obtain the real-time location of at least one unique victim.
U.S.S.G. § 3D1.2(a), (b). Defendant then used that information to find the victim,
repossess the victim’s vehicle, and, as to at least one victim, harass and threaten
the victim.
Defendant argues that “all six of his counts group together” because T-Mobile
is the only victim and the counts are “connected by a common criminal objective
or constituting part of a common scheme or plan.” (Doc. 29 at 23-24). The
Guidelines explain that a “victim” is the “person who is directly and most
seriously affected by the offense.” U.S.S.G. § 3D1.2(b). The individuals whose
private information was fraudulently obtained by Defendant were the direct
victims who were the “most seriously affected” in this case. When an
individual’s private location information is obtained, and she is thereby exposed
to harm by having her precise location known to a non-law enforcement
stranger, she is a victim under any definition of the word. In this case,
Defendant not only used the location information to find the victims, but also to
harass and threaten at least one victim. Importantly, if counts One through Six
were not to group, Defendant would receive no incremental punishment for the
additional criminal acts. See U.S.S.G. § 3D1.2 (d). Under Defendant’s reading of
the Guidelines, it would not matter if Defendant had impersonated a U.S.
Marshal to fraudulently obtain the location information of one victim or one
thousand victims; his punishment would be the same. The PSR correctly
calculated and applied the multiple count adjustment in this case, and

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Defendant’s offense level should be increased by five levels under U.S.S.G.
§ 3D1.4. (See PSR at ¶ 49).
c. Defendant Does Not Claim His Criminal History Score Was Incorrectly
Calculated and a Downward Departure is Not Warranted
Defendant argues that his criminal history points do not accurately represent
his criminal history and propensity to commit additional criminal offenses
because the “points are derived from offense conduct that stemmed from
incidents involving his then- and subsequently ex-wife, and the resulting
entanglement in the judicial system.” (Doc. 29 at 26). Defendant received one
criminal history point for battering his ex-wife, three points for stalking and
harassing his ex-wife, one point for forging a document he submitted to his
Probation office, and two points for committing the instant offense while on
probation. (See PSR ¶¶ 59-63). That Defendant received multiple criminal
history points for battering, stalking, and harassing his ex-wife does imply that
he is not likely to recidivate. Defendant’s criminal conduct is not limited to
domestic disputes, rather his criminal acts involving his ex-wife were part of a
broader pattern of stalking and harassing victims perpetuated by Defendant. See
infra Analysis § 2.A. Moreover, Defendant has demonstrated an utter disregard
for the law in this case where he pretended to be the law. Defendant does not
even argue that the PSR incorrectly calculates his criminal history score.
Defendant’s criminal history, therefore, is accurately reflected in the PSR.

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2. IN THE ALTERNATIVE, THE COURT SHOULD VARY UPWARD AND
IMPOSE A SUBSTANTIVELY REASONABLE SENTENCE OF 27
MONTHS UNDER 18 U.S.C. § 3553.
A district court has significant discretion in deciding whether the factors
listed in Title 18, United States Code, Section 3553(a) justify a variance from the
applicable Guidelines’ range at sentencing, and in deciding the extent of an
appropriate variance. United States v. Sharma, 407 F. App’x 401, 404 (11th Cir.
2011) (citing United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009)). The
Court must first correctly calculate the applicable Guidelines’ range, and then it
may weigh the 3553(a) factors to determine whether a variance is warranted.
United States v. Magana, 376 F. App’x 892, 893 (11th Cir. 2010). Section 3553(a)
requires the sentencing court to consider:
(1)
the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2)
the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;
(B)
to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in
the most effective manner . . . .

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18 U.S.C. 3553(a). The weight to accord each of the 3553(a) factors is left to the
Court’s discretion. Magana, 376 F. App’x at 893.

In this case, the Court should

impose a substantively reasonable sentence of 27 months 18 U.S.C. 3553(a).
A. Defendant=s History of Stalking and Harassment and the Nature of the
Crimes in this Case Warrant a Commensurate Sentence.
Defendant’s history and the nature of his crimes in this case reveal a pattern
of harassment, stalking, and threats by Defendant. In 2006, Defendant
physically battered his then-wife by kicking her and grabbing her arms. In 2008,
Defendant, in the process of repossessing the victim’s vehicle, harassed his
victim through frequent calls and text messages. Defendant threatened to have
the victim arrested and mocked her because of her weight. In 2009, Defendant
harassed, intimidated, and conducted surveillance on his ex-wife who had a
temporary protective order against him. And in 2015, Defendant harassed “RJ,”
a victim in this case, by calling her multiple times a day, showing up at her home
and at her place of work, and threatening to arrest her.
For the instant offenses, Defendant faces a combined statutory maximum
sentence of eighteen years. Defendant’s criminal history, his clear pattern of
harassing and stalking victims, and the nature of his offenses in this case require
a commensurate sentence of 27 months; a sentence that is well below the
combined statutory maximum his crimes carry. See Magana, 376 F. App’x at 893
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(granting upward variance based on violent nature of defendant’s crimes and his
past history of violence); United States v. Dukes, 380 F. App'x 971, 973 (11th Cir.
2010) (affirming upward variance where Defendant had two prior felony
convictions).
B. A Commensurate Sentence Will Protect the Public From Further Crimes
of the Defendant.
Defendant needs to be incarcerated to keep him from preying on members of
the public. He has demonstrated his propensity for harassing, stalking, and
threatening victims. A sentence of 27 months, therefore, is necessary “to protect
the public from further crimes of the defendant.” 18 U.S.C. 3553(a)(2)(C).
C. A Commensurate Sentence Promotes Respect for the Law, Affords
Adequate Deterrence, and Provides Just Punishment for the Offense.
Defendant’s previous sentence of probation failed to deter his criminal
conduct. Defendant also has demonstrated an utter disrespect for the law in this
case, where he pretended to be the law. In fact, Defendant blamed his crimes in
this case on his feeling that “the Marshals owed [him]” from a previous arrest
where he fought with U.S. Marshals. A sentence of 27 months is necessary to
promote respect for the law and afford adequate deterrence. 18 U.S.C.
3553(a)(2)(A).

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CONCLUSION
For the foregoing reasons, the government respectfully argues that the PSR
correctly calculates Defendant’s Guideline range of 27 to 33 months’
confinement. In the alternative, an upward variance to 27 months pursuant to
the factors listed in 18 U.S.C. § 3553(a) is appropriate to ensure Defendant’s
sentence is commensurate with his criminal history, pattern of conduct, and the
crimes in this case.
Respectfully submitted,
J OHN A. H ORN

Acting United States Attorney

/s/J OLEE P ORTER
Assistant United States Attorney
Provisionally admitted
per Local Rule 83.1(A)(3)
Jolee.Porter@usdoj.gov

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Certificate of Service
I served this document today by filing it using the Court’s CM / ECF system,
which automatically notifies the parties and counsel of record.
Richard Holcomb
February 5, 2016
/s/ J OLEE P ORTER
J OLEE P ORTER
Assistant United States Attorney

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EXHIBIT 1

Case Document 30-1 Filed 02/05/16 Page 2 of 3

To:

Subject: Fw: Location Alert] (John Edens)
Date: Monday, January 26, 2015 3:43:24 PM
Attachments: 

 

Frank Lempka
Deputy U.S. Marsha!


Sent: Tuesday, January 6, 2015 7:13 PM

To: Lempka, Frank (USMS)
Subject: Fwd: Location Alert] (John Edens). 

Sent from my iPhone so please excuse unnatural auto corrects!

Valerie?

Asset Management Service

 

Begin forwarded message:

From: "Deputy Marshall Jeff Cromer"

i 
Date: October 21, 2014 at 1:25:05 PM CDT
T0: 

Subject: Location Alert]

Original Message 

Subject: Locatio

From: 
Date: Tue, October 21, 2014 11:14 am
To: a 

Case Document 30-1 Filed 02/05/16 Page 3 of 3

Cc: 

Location of 404988- at 10/21/2014 14: 28 AM Pacific Daylight
Time Result Lat: 33 7.54338 Lon: -84. 470077 Uncertainty470077

 

 

 

Case Document 30-2 Filed 02/05/16 Page 1 of 3

EXHIBIT 2

Case Document 30-2 Filed 02/05/16 Page 2 Of 3

 

 

 

 

 

 

 

 

 

 

 

 

IN THE SUPERIOR COURT OF COUNTY, GEORGIA FINAL DISPOSITION
STATE OF GEORGIA CASE NO. 1oCR021g AND 10CR0213
(CONSOLIDATED FOR SENTENCING)
vs 100R0m CT. I: AGGRAVATED
(Egg STALKING. CT. II: HARASSING PHONE CALLS,
\3 I
I 1OCR0213 CT. I: FORGERY 1ST 
NNI31
- 
JOHN EDENS NOVEMBER ADJOURN TERM 2010
A PLEA VERDICT OTHER DISPOSITION
NEGOTIATED GUILTY ON NOLLE PROSEQUI ORDER ON
x_ GUILTY ON II 100R0212 
GUILTY 0N COUNT 1 IOCR0213 NOT GUILTY ON DEAD DOCKET ORDER ON

TO LESSER INCLUDED GUILTY OF INCLUDED 
OF MERGES INTO COUNT
ON 0N (SEE SEPARATE ORDER)
FELONY SENTENCE
FIRST OFFENDER SENTENCE

WHEREAS, THE DEFENDANT HAS NOT PREVIOUSLY BEEN CONVICTED OF A FELONY NOR USED THE PROVISIONS OF THE FIRST OFFENDER
ACT (O.C.G.A. 42-8-60). NOW, THEREFORE, THE DEFENDANT CONSENTING HERETO, IT IS HEREBY ORDERED AND ADJUDGED BY THE COURT
WITHOUT ENTERING A JUDGMENT OF GUILTY HEREIN THAT FURTHER PROCEEDINGS BE DEFERRED AND THE DEFENDANT IS HEREBY
SENTENCED TO CONFINEMENT FOR THE PERIOD OF FIVE (5) YEARS

IN THE STATE PENAL SYSTEM, OR SUCH OTHER INSTITUTION AS THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS MAY DIRECT,
TO BE COMPUTED AS PROVIDED BY LAW. IT IS FURTHER ORDERED THAT DEFENDANT PAY A TOTAL FINE OF 5 2000 

AND THE FOLLOWING SURCHARGESLAW LIBRARY FEE. 5 LAB FEE: 55 DEFENSE FUND 5

IT IS THE FURTHER ORDER OF THE COURT:

 

1) THAT THE SENTENCE MAY BE SERVED ON PROBATION AS TO I OF 10CR0212 AND CT. I OF IOCR0213:
2) THAT UPON SERVICE OF AS TO . THE REMAINDER OF MAY BE SERVED ON


PROVIDED, THAT THE DEFENDANT COMPLIES WITH THE FOLLOWING GENERAL, SPECIAL, AND OTHER CONDITIONS HEREIN IMPOSED AS PART
OF THIS SENTENCE, INCLUDING THOSE SPECIAL CONDITIONS LISTED ON THE REVERSE SIDE OF THIS SENTENCE WHICH BY REFERENCE ARE
MADE A PART OF THIS SENTENCE. UPON FULFILLMENT OF THE TERMS OF THIS SENTENCE. OR UPON RELEASE OF THE DEFENDANT BY THE
COURT PRIOR TO THE TERMINATION OF THIS SENTENCE. THE DEFENDANT SHALL STAND DISCHARGED OF ABOVE WITHOUT
COURT ADJUDICATION OF GUILT AND SHALL BE COMPLETELY EXONERATED OF GUILT OF SAID CHARGED.

IT IS THE FURTHER ORDER OF THE COURT, AND THE DEFENDANT IS HEREBY ADVISED, THAT THE COURT MAY AT ANY TIME REVOKE OR
MODIFY ANY CONDITIONS OF THIS PROBATION DISCHARGE THE DEFENDANT FROM PROBATION. THE DEFENDANT SHALL BE SUBJECT
TO ARREST FOR VIOLATION OF ANY CONDITION OF PROBATION HEREIN GRANTED. IF SUCH PROBATION IS REVOKED, THE COURT MAY ENTER
AN ADJUDICATION OF GUILT AS TO THE ABOVE AND PROCEED TO SENTENCE THE DEFENDANT TO THE MAXIMUM SENTENCE
AS PROVIDED BY THE LAW. WITH OR WITHOUT CREDIT FOR TIME SERVED ON PROBATION.

LET A COPY OF THIS ORDER BE FORWARDED TO THE DEPARTMENT OF CORRECTIONS, GEORGIA CRIME INFORMATION CENTER, AND THE
IDENTIFICATION DIVISION OF THE FEDERAL BUREAU OF INVESTIGATION.

 

GENERAL CONDITIONS OF PROBATION

1) DO NOT VIOLATE THE CRIMINAL LAWS OF ANY GOVERNMENTAL UNIT.

2) AVOID INJURIOUS AND VICIOUS ESPECIALLY ALCOHOLIC INTOXICATION, AND USE OF NARCOTICS OR OTHER DANGEROUS
DRUGS UNLESS PRESCRIBED LAWFULLY.

3) AVOID PERSONS OR PLACES OF DISREPUTABLE OR HARMFUL CHARACTER.

4) REPORT TO THE PROBATION OFFICER AS DIRECTED AND PERMIT SUCH OFFICER TO VISIT YOU AT HOME OR ELSEWHERE.

5) WORK FAITHFULLY AT SUITABLE EMPLOYMENT INSOFAR AS MAY BE POSSIBLE.

6) DO NOT CHANGE YOUR PLACE OF ABODE. MOVE OUTSIDE THE JURISDICTION OF THE COURT. OR LEAVE THE STATE FOR ANY PERIOD
OF TIME WITHOUT PRIOR PERMISSION OF THE PROBATION OFFICER.

7) SUPPORT YOUR LEGAL DEPENDENTS, IF ANY. TO THE BEST OF YOUR ABILITY.

8) SUBMIT TO EVALUATIONS AND TESTING RELATING TO REHABILITATION AND PARTICIPATE IN AND SUCCESSFULLY COMPLETE

REHABILITATIVE PROGRAMMING AS DIRECTED BY THE DEPARTMENT OF CORRECTIONS.

 

OTHER SPECIAL CONDITIONS OF PROBATION
IT IS FURTHER ORDERED THAT DEFENDANT PAY APPOINTED ATTORNEY FEES AS APPROVED, NOT TO EXCEED 
RESTITUTION OF --. AND A $32.00 PROBATION FEE. ALL COURT-ORDERED MONIES SHALL BE PAID TO THE GEORGIA
DEPARTMENT OF CORRECTIONS WITHIN 60 MONTHS AT THE RATE OF 125 PER MONTH BEGINNING .

Case Document 30-2 Filed 02/05/16 Page 3 of 3

SPECIAL CONDITIONS OF PROBATION

IN ACCORDANCE WITH O.C.G.A. 342-8-34.1, THE COURT HEREBY IMPOSES THE FOLLOWING SPECIAL CONDITIONS OF PROBATION. THE
VIOLATION OF ANY OF THESE CONDITIONS COULD RESULT IN THE COURT REVOKING THE PROBATION AND REQUIRING THE DEFENDANT TO
SERVE THE BALANCE OF THE SENTENCE IN CONFINEMENT.

IT IS FURTHER ORDERED THAT THE DEFENDANT:

(1) SHALL NOT TAKE INTO BODY ANY SUBSTANCE PROHIBITED OR CONTROLLED BY ANY LAW OF THE STATE OF GEORGIA OR
THE UNITED STATES EXCEPT PURSUANT TO A PRESCRIPTION WHICH SHALL BE SUBMITTED TO THE PROBATION
OFFICER FOR INSPECTION AND COPY PRIOR TO INGESTING ANY OF THE PRESCRIBED SUBSTANCES.

(2) SHALL. FROM TIME TO TIME. UPON ORAL OR WRITTEN REQUEST BY THE PROBATION OFFICER PRODUCE A SPECIMEN OF ANY BODILY
SUBSTANCE FOR ANALYSIS FOR THE PRESENCE OF A SUBSTANCE PROHIBITED BY ANY LAW OF THE STATE OF GEORGIA OR THE
UNITED STATES. THIS WILL ALSO INCLUDE ETG TESTING.

(3) SHALL SUBMIT TO A SEARCH OF HISIHER PERSON. HOUSES. PAPERS. EFFECTS AS THESE TERMS OF THE FOURTH
AMENDMENT TO THE UNITED STATES CONSTITUTION ARE DEFINED BY THE COURTS. ANY TIME OF THE DAY OR NIGHT. WITH OR
WITHOUT A SEARCH WARRANT. WHENEVER REQUESTED TO DO SO BY A PROBATION OFFICER OR A DESIGNATED LAW
ENFORCEMENT OFFICER AND HEISHE SPECIFICALLY CONSENTS TO THE USE OF ANYTHING SEIZED AS EVIDENCE IN ANY JUDICIAL

PROCEEDINGS OR TRIAL.

(4) SHALL REPORT ALL ARRESTS FOR ANY REASON TO THE PROBATION OFFICER WITHIN FORTY-EIGHT (48) HOURS.

(5) SHALL NOT POSSESS ANY ALCOHOLIC BEVERAGES. FIREARMS. OR ILLEGAL CONTROLLED SUBSTANCES. NOR OCCUPY ANY
RESIDENCE OR VEHICLE WHERE SUCH IS PRESENT.

(6) SHALL PERFORM 120 HOURS OF COMMUNITY SERVICE AT THE RATE OF NOT LESS THAN EIGHT (8) HOURS PER WEEK.
OR AS OTHERWISE DIRECTED BY THE PROBATION OFFICER.

(7) SHALL NOT CONSUME ANYALCOHOLIC BEVERAGES. TO INCLUDE ANY OVER-THE-COUNTER MEDICATIONS CONTAINING ALCOHOL.

(8) SHALL AVOID ANY CONTACT: PERSONAL. BY TELEPHONE. MAIL OR OTHERWISE WITH VICTIMS NICOLE HALPIN WITH GEORGIA
PROBATION MANAGEMENT. LISA EDENS. RON VAVALA OR DR. SANDRA WILLIAMS.

(9) THE DEFENDANT MUST ENTER AND SUCCESSFULLY COMPLETE A FAMILY VIOLENCE INTERVENTION PROGRAM AS DIRECTED BY
THE PROBATION OFFICER.

IOCR0212 COUNT I: 5 YEARS PROBATION

10CR0212 COUNT II: 12 MONTHS PROBATION CONCURRENT

10CR0213 COUNT I: 5 YEARS PROBATION CONCURRENT

THE DEFENDANT WAS REPRESENTED BY THE HONORABLE JEFF PURVIS . . . ATTORN LAW, COUNTY.

 

 

    

so ORDERED THIS 25? DAY OF FEBRUARY .20 11 
UD COURT

1m .

A


CERTIFICATE OF IS TO CERTIFY THAT A TRUE AND RECT SENTENC AS BEEN DEL ERED IN PERSON TO
THE DEFENDANT. WHO HAS BEEN DULY INSTRUCTED REGA ING CONDITIO SET FORTH HEREIN.

  

 

  
    

THIS 25?" DAYOF FEBRUARY .20 11 . -
PROBATION OFFICER

COPY RECEIVED AND INSTRUCTIONS REGARDING SENTENCE AND 09 

I
x" 
THIS 25?? DAY OF FEBRUARY .2011 . 



 

PROBATIONER

Case Document 30-3 Filed 02/05/16 Page 1 of 19

EXHIBIT 3

Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 2 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

Filed 06/26/09 Page 1 of 18

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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JESSICA HARTUNG,
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Plaintiff,

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vs.
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J.D. BYRIDER, INC., JD BYRIDER
OF CHANDLER; CARNOW
ACCEPTANCE COMPANY; JOHN
ANDERSON; and T-MOBILE USA
INC and DOES 1 through 10 inclusive,

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Defendants.

)
)
)
)
)
)
)
)
)

1:08-cv-00960 A WI GSA
FINDINGS AND RECOMMENDATIONS
REGARDING AMENDED MOTION
FOR DEFAULT JUDGMENT
(Document 72)

)
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Judgment against Defendant John Anderson, aka, John Edens, on March 24, 2009. No opposition to

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the motion was filed. A damages hearing was held on May 15,2009. Plaintiffs counsel Jeremy S.

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Golden appeared telephonically on behalf of Plaintiff. Plaintiff also personally appeared. Plaintiffs

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counsel subsequently filed a declaration on May 20, 2009, as well as a supplemental brief on May

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23, 2009.

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recommends that Plaintiffs Motion for Default Judgment be GRANTED JN PART.

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III

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AUTH[NTICATED

US COVERNMEJ\:T
INFORMAl ION

Plaintiff Jessica Hartung ("Plaintiff') filed the instant Amended Motion for Default

Having considered all of the pleadings and the evidence in this case, the Court

 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 3 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

Filed 06/26/09 Page 2 of 18

BACKGROUND
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On March 11, 2008, Plaintiff filed a complaint in the United States District Court, Northern

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District of California against Defendants J.D. Byrider, Inc., JD Byrider of Chandler, Carnow

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Acceptance Company, John Anderson, T-Mobile USA, Inc., and Does I through 10. 1 The

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Complaint alleges violations of the Fair Debt Collection Practices Act 15 U .S.C. § 1692, et seq.

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(Hereinafter, "FDCPA") (first cause of action), California's Rosenthal Fair Debt Collect Practices

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Act, Cal. Civ. Code § 1788 et seq (Hereinafter, "Rosenthal Act") (the second cause of action),

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negligence (third and forth causes of action), and invasion of privacy (fifth cause of action).

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According to the complaint, Plaintiff purchased a used car from J.D. Byrider and obtained

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financing from CNAC. She fell behind on her payments in October 2007. J.D. Byrider and CNAC

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allegedly assigned her debt to Defendant Anderson for collection. On or about January 14, 2008,

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Anderson allegedly contacted T-Mobile and identified himse1fas Plaintiffs father requesting that T-

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Mobile add him as a user on Plaintiffs T-Mobile account. Thereafter, Defendant allegedly used

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information obtained from T-Mobile including Plaintiffs home address to begin unlawful and

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harassing collection attempts by frequently calling and text messaging Plaintiff.

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Specifically, the complaint alleges that on January 16, 2008, through January 22, 2008,

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Anderson began calling Plaintiff in an attempt to collect the debt. On more than one occasion,

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Anderson called and/or sent text messages to Plaintiff several times a day in a harassing manner.

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Plaintiff told Anderson to cease and desist several times. Over the course of these five days,

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Defendant allegedly sent Plaintiff a total of 17 messages in which he was extremely angry,

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menacing, and intimidating. These messages included the following:

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In July 2008, the parties stipulated to dismiss defendant Grace Auto, Inc, which was erroneously sued and served
as J.D. Byrider of Chandler (Doc. 30). On September 9, 2008, Defendants Byrider Franchising, Inc. (erroneously sued and
served as J.D. Byrider, Inc.) and Grace Finance, Inc. d/b/a CNAC (erroneously sued and served as Camow Acceptance
Company) filed a motion to stay the proceedings and compel arbitration. On October 17, 2008, this court issued Findings
and Recommendations recommending that the motion to compel arbitration and the motion to stay the proceedings be granted
as to these defendants. These Findings and Recommendations were adopted by Chief Judge Anthony W. Ishii on December
17, 2008. T-Mobile USA was dismissed from this case on December 9, 2008 pursuant to a settlement agreement (Docs. 45
and 60).

2

 --------------

Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 4 of 19
Case 1:08-cv-00960-AWl-GSA Document 81

Filed 06/26/09 Page 3 of 18

1) On January 16, 2008, Anderson falsely stated he was an attorney hired by the Defendant
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CNAC and claimed that he was hired to "smooth out" issues between Defendant CNAC and

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Plaintiff;

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2) On January 17, 2008, Anderson called Plaintiff and stated that he knew her T-MOBILE
bill was being sent to her address in Modesto;

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3) On January 17, 2008, Plaintiff told Anderson to cease and desist communication and
ended the conversation;

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4) After Plaintiff told Anderson to cease and desist communication he called her back
continuously. Plaintiff instructed Anderson to cease, each time to no avail;

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5) Anderson falsely stated that he would have Plaintiff arrested if she did not let him have the
car;
6) On January 17, 2008, Anderson sent the following text message to Plaintiff: "Tum the car

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in or I [sic] send the Sheriff, you [sic] illegally took the car out of state I cant [sic] verify insurance

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or address." Received 11:15 am, sender 5000-John;

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7) On January 17, 2008, Anderson sent the following text message to Plaintiff: "[Y]ou have

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various bills going to crows landing. I can tell by talking to you you're smarter than this. So [sic] I

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guess we'll see." Received 11:19 am, sender 5000-John;

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8) On January 17, 2008, Anderson sent the following test message to Plaintiff: "you [sic]

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might want to tell your amigo Rudy to get a job, I just faxed maricopa [sic] paperwork to stanislaus

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sheriff department [sic]." Received 11:35 am, sender 5000-John;

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9) On January 17, 2008, Anderson sent the following text message to Plaintiff: "I want o

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make thsi [sic] clear, your money is not what I want. I want the car. If you don't give it up, get

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yourself some bail money." Received 11:37 am, sender 5000-John;

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10) After Plaintiff received this text message she was in great fear and told the caller to stop
calling. She then called the police;
11) On January 17, 2008, Anderson sent the following text message to Plaintiff: "Calling
[sic] me will not help you. Park the car [sic] tell Rudy to warm up the Impala." Received 11:39 am,

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 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 5 of 19
Case 1:08-cv-00960-AWl-GSA Document 81

Filed 06/26/09 Page 4 of 18

sender 5000-John;
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12) On January 17, 2008, Anderson sent the following text message to Plaintiff: "[l]t upsets

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me a smart girl like you is iwith [sic] a guy is [sic] doing nothing at 11:30 a.m. but when he doesn't

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have a free car he'll leave." Received 11:43 am sender 5000-John;

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13) On January 17, 2008, Anderson sent the following text message to Plaintiff: "[M]ake

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sure and have the [sic] deputy call me, nad [sic] show him your DL too." Received 12:03 p.m.

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sender 5000;

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14) After Plaintiff received this text message the deputy sheriff arrived at her house. The
deputy sheriff called Anderson leaving a voice mail message ordering Anderson to stop contacting
Plaintiff;
15) On or about January 17, 2008, Plaintiff called CNAC and spoke to Rose and explained
that she felt harassed and intimidated and requested that Anderson cease and desist;
16) On January 18, 2008, Anderson called Plaintiff four times. In three of those

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conversations, Plaintiff instructed Anderson to cease and desist and stated that she would have to

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call the police again;

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17) On January 18, 2008, Anderson sent the following text message to Plaintiff: "[D]oes mr.

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bogens[sic] know you have no DL, no insurance, and no registartion [sic] yet your [sic] on the road

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doing work." Received 1:38 p.m. sender 5000-John;

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18) On January 18, 2008, Anderson placed an unanswered call to Lawrence Borgens,
Plaintiffs employer;
19) On January 19, 2008, Anderson sent the following text message to Plaintiff: "Lawrence

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Borgens will see me first thing Monday, you should not have been rude to my employee." Received

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12:25 pm, sender 5000-R&J Recovery;

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20) On January 19, 2008, Anderson sent the following text message to Plaintiff: "[W]hat

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makes you think you can drive a car you don't pay for? My company tows for the local police and

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sheriff both." Received 12:27 pm, sender 5000-R&J Recovery;

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21) On January 19, 2008, Anderson sent the following text message to Plaintiff:
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 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 6 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

Filed 06/26/09 Page 5 of 18

"[A]pparently you think you're above the law. I don't wnt[sic] any trouble. [W]e're just doing our
2 job." Received 12:29 pm, sender 5000-R&J Recovery;
3

22) On January 19, 2008, Anderson sent the following text message to Plaintiff: "[T]he guy

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in [G]eorgia has been removed from the case. Now its my entire staff versus you." Received 12:32

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pm, Sender 5000-R&J Recovery;

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23) On January 19, 2008, Anderson sent the following text message to Plaintiff: "[T]hat lady

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you were rude to means a lot to me I think an apology is in order." Received 12:33 pm, Sender-R &

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J Recovery;

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24) On January 19, 2008, Plaintiff spoke to an employee at R & J Recovery and he indicated
that they had not sent any text messages to the Plaintiff;
25) On January 20, 2008, Anderson sent the following text message to Plaintiff: "[I]'m

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hoping to God you see the light and figure out I will just take your car." Received 5:49 pm, Sender

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5000- R & J Recovery;

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26) On January 20, 2008, Anderson sent the following message to Plaintiff: "Porky Pig 200

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pound slob in a double wide. Figure. I got some picture messages of you today. Oink oink. Ryan

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must like mountain climbing." Received 5:57pm, Sender 5000;

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27) On January 22, 2008, Plaintiff called Anderson and told him to stop calling. In response,
Anderson stated, "I don't have to stop it's my job";
28) On or about January 22, 2008, Plaintiff called CNAC and spoke to Rose who stated that
CNAC hired Anderson and that she will get Anderson to cease and desist.
As a result of the above, Plaintiff alleges she was forced to provide personal information to

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her employer and friends so they would not reveal private information, as well as to ensure the

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safety of those involved. Declaration of Jessica Hartung dated March 24, 2009 at pg. 5. (Doc. 74).

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Plaintiff subsequently voluntarily surrendered the car. Id. In addition, Plaintiff contends that she

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suffered tenseness, headaches, nervousness, fear, worry, unhappiness, loss of sleep, nightmares,

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crying jags, loss of appetite, loss of concentration, loss of enjoyment of life, shortness of breath,

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humiliation, and extreme emotional distress. Id. Moreover, Plaintiff alleges that Defendant's actions

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 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 7 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

Filed 06/26/09 Page 6 of 18

aggravated her anxiety disorder, post-traumatic stress disorder, back injury, and asthma which
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forced her to obtain medication from her psychiatrist.l.Q_,_
Defendant was served with a copy of the complaint on April 9, 2008. (Doc. 8). Defendant

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failed to respond to the complaint or otherwise appear in this action. On September 30, 2008,

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Plaintiff requested entry of default against Defendant. (Doc 49). The Clerk of the Court entered

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Defendant's default on October 1, 2008. (Doc. 50). On November 14, 2008, Plaintiff filed a Motion

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for Default Judgment against John Anderson, aka, John Edens. (Doc. 58). The matter was set for a

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damages hearing, however, the Court became aware that Defendant may not have been properly

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served with the complaint and issued an order on January 14, 2009, informing Plaintiff of the

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difficulties with the proof of service. (Doc. 65). On January 21, 2009, Defendant subsequently

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moved to withdraw the Motion for Default. (Doc. 66). The court granted Plaintiff's Motion to

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Withdraw the Motion for Default Judgment and vacated the default issued on October 1, 2008.

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(Doc. 68).

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Plaintiff subsequently served Defendant with the summons, complaint, and statement of

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damages on January 29, 2009. (Doc. 69). The Defendant failed to appear in this action again and

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default was entered by the Clerk of the Court against him on March 16, 2009. (Doc. 71 ). Plaintiff

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filed the instant Amended Motion for Default Judgment on March 23, 2009. (Doc. 72). Defendant

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John Anderson is named in the first, second, and fifth causes of action of the complaint for violations

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of the of the FDCPA, the Rosenthal Act, and for Invasion of Privacy, respectively. Based on these

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violations, Plaintiff seeks a total award of$58,929.00. More specifically, Plaintiff seeks the

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following relief:

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1.

$50,000.00 in emotional damages;

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2.

$2,000.00 in statutory damages;

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3.

Attorneys' fees in the amount of $6,579.00; and

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5.

Costs in the amount of $350.

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DISCUSSION
Plaintiff moves for entry of default judgment pursuant to Federal Rule of Civil Procedure
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 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 8 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

Filed 06/26/09 Page 7 of 18

55(b)(2), which provides that judgment may be entered:
(2)
By the Court. In all other cases, the party must apply to the court for default
judgment. A default judgment may be entered against an infant or incompetent
person only if represented by a general guardian, committee, conservator, or other
like fiduciary who has appeared. lfthe party against whom default judgment is sought
has appeared personally or by a representative, that party or its representative must be
served with written notice of the application at least 3 days before the hearing. The
court may conduct hearings or make referrals - preserving any federal statutory right
to a jury trial -when, to enter or effectuate judgment, it needs to : (A) conduct an
account; (B) determine the amount of damages; (C) establish the truth of any
allegation by evidence; or (D) investigate any other matter.

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Upon default, the well-pleaded allegations of the complaint relating to liability are taken as
true. Dundee Cement Co. v. Highway Pipe & Concrete Products. Inc. 722 F.2d 1319, 1323 (7th
Cir. 1983); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915,917-918 (9th Cir. 1987). Thus,
"[a]t the time of entry of default, the facts alleged by the plaintiff in the complaint are deemed
admitted." 10 J. Moore, Moore's Federal Practice §55.11 (3d ed. 2000). While the allegations
related to liability are true, the amount of damages suffered are ordinary not. Dundee Cement Co. v.
Highway Pipe & Concrete Products, Inc. 722 F.2d at 1323. However, ajudgment by default may be
entered without a hearing on damages if the amount claimed is liquidated or capable of
ascertainment from definite figures contained in the documentary evidence or in detailed affidavits.
.!..9.:. In this case, Plaintiff is seeking a considerable amount in emotional distress damages which is

not capable of being ascertained from the declaration submitted. Accordingly, the Court held a
damages hearing on May 15, 2009.
A.

Plaintiff is Entitled to Entry of Default Judgment
Factors which may be considered by courts in exercising discretion regarding the entry of a

default judgment include: (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiffs
substantive claim, (3) the sufficiency ofthe complaint, (4) the sum of money at stake in the action;
(5) the possibility of a dispute concerning material facts; (6) whether the default was due to
excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure
favoring decisions on the merits. Eitel v. McCool, 782 F .2d 14 70, 14 71-14 72 (9th Cir. 1986).
The Court has evaluated the factors listed above and finds that the facts in this case weigh

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 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 9 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

Filed 06/26/09 Page 8 of 18

heavily in favor of granting default judgment. First, Plaintiff would suffer prejudice if the court does
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not enter default judgment because she would have no other means of recovery. Second, as outlined

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below, Plaintiffs complaint properly alleges the necessary elements of each cause of action which

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satisfies the second and third factors; the merits of the substantive claim, and the sufficiency of the

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complaint. The fourth factor is also met since there is a significant amount of money at stake in this

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action in the form of actual damages, which as discussed below, are authorized under law.
The fifth factor, the possibility of a dispute concerning the material facts is also met.

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Defendant never appeared in this action. Therefore, Defendant is not in a position to defend the

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action, or to dispute material facts. Given Defendant's non-appearance, the sixth factor is also

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satisfied since there is also no evidence that default resulted from excusable neglect. With regard to

II

the last factor, although cases should be decided on the merits when reasonably possible, such

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preference alone is not dispositive. PepsiCo Inc., v. California Security Cans, 238 F. Supp. 2d Il72,

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II77 CC.D. Cal. 2002). Defendant's failure to respond and defend this action, renders a decision on

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the merits impractical. Finally, Defendant does not appear to be an infant or incompetent person,

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and is not in the military service or otherwise exempted under the War and National Defense

16

Servicemember's Civil Relief Act.

17

B.

Sufficiency of the Complaint and Damages

18

1. TheFDCPA

I9

The FDCPA was enacted in response to inadequate laws to redress injuries to consumers

20

from abusive, deceptive, and unfair debt collection practices by debt collectors. I5 U.S.C. § I692.

21

The FDCPA broadly prohibits: (1) unfair or unconscionable collection methods, (2) conduct which

22

harasses, oppresses, or abuses any debtor, and (3) any false, deceptive, or misleading statements in

23

connection with the collection of a debt. I5 U.S.C.

24

defendant must be a "debt collector" and the plaintiff must be a "consumer" within meaning of

25

FDCPA. 15 U.S.C.A. § I692a. The FDCPA creates a private right of action against a debt collector.

26

15U.S.C.§1692k.

27
28

§

1692d-f. To bring a valid FDCPA action, the

Anderson is a debt collector and Hartung is a consumer under the FDCPA. Beginning on

8

 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 10 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

Filed 06/26/09 Page 9 of 18

January 16, 2008, Defendant unlawfully obtained Plaintiffs contact information from a third party.
2

Thereafter, he sent a series of harassing messages and used continuous abusive tactics to collect a

3

debt including misrepresenting that he was an attorney, threatening to contact Plaintiffs employer,

4

and making a phone call to Plaintiffs employer. Furthermore, Defendant Anderson told Plaintiff that

5

he would have her arrested if she did not pay the debt or return the car, called her names, told

6

Plaintiff he had taken pictures of her, and made inappropriate sexual comments.

7

Based on the allegations in complaint, Anderson's actions violate the following sections of

8

the FDCPA: 15 U.S.C. § 1692c (b) (prohibits the improper use ofthird party contacts); 15 U.S.C. §

9

1692d (prohibits harassment or abuse); 15 U .S.C. § 1962d (2) (prohibits profane language and/or

10

other abusive language); 15 U.S.C. § 1692d (5) (prohibits repeated telephone calls); 15 U.S.C. §

11

1692e (prohibits false representations); 15 U.S.C. § 1692e (2)(A) (prohibits false impression oflegal

12

status of debt); 15 U.S.C. § 1692e (3) (prohibits false impression that an individual is an attorney);

13

15 U.S.C. § 1692e (4) (prohibits false impression that nonpayment will result in arrest); 15 U.S.C. §

14

1692e (5) (prohibits threat to take action that cannot be legally taken); 15 U.S.C. § 1692e (7)

15

(prohibits giving a consumer the impression that they have committed a crime) 15 U.S.C. § 1692e

16

(1 0) (generally prohibits false representations and deceptive means); 15 U .S.C. § 1692f (prohibits

17

unfair and unconscionable means to collect a debt); and 15 U.S.C. § 1692f (6) (prohibits threats to

18

unlawfully disable Plaintiffs property).

19
20

a. Actual Damages based on the FDCPA
Plaintiff requests actual damages in the amount of $50,000. Under the FDPCA actual

21

damages may be awarded to a Plaintiff as a result of a defendant's failure to comply with the Act.

22

15 U .S.C. § 1692k(a)( 1). However how to interpret the "actual damage" language with respect to

23

emotional dist~ess is a controversial issue that has not yet been addressed by the Ninth Circuit.

24

Bolton v. Pentagroup Financial Services. LLC., 2009 WL 734038 at* 10-11 (E.D. CaLMar 17,

25

2009); Costa v. National Action Financial Services, 2007 WL 4526510 at *7-8 (E. D. Cal., December

26

19, 2007). District courts nationally have issued conflicting decisions regarding this issue. Some

27

courts have determined that under the FDPCA a Plaintiff is not required to meet the state law

28

9

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standards for intentional infliction on emotional distress ("liED"). Costa v. National Action
2

Financial Services, 2007 WL 4526510 at *7-8. Courts that do not require state law requirements

3

have analogized the FDCPA to the Fair Credit Reporting Act. ("FCRA"). Id. citing, Panahiasal v.

4

Gurney, 2007 WL 738642 at *2 (N.D. Cal. March 8, 2007); Donahue v. NFS. Inc .. 781 F. Supp. 188

5

(W.D.N.Y. 1991)("A plaintiffs right to recovery of actual damages under the FDCPA predicated on

6

claimed emotional distress remains independent of the plaintiffs right, if any, to recover for

7

emotional distress under state law"); see also Clodfelter v. United Processing, Inc .. 2008 WL

8

4225557 CC.D. Ill. Sept. 12, 2008).

9

Alternatively, other courts, including two in this district, require a plaintiff to prove a claim

10

for liED under state law in order to collect damages for emotional distress. Bolton v. Pentagroup

11

Financial Services, LLC .. 2009 WL 734038 at * 10-11 (Plaintiffs transitory stress failed to meet

12

state liED standard); Costa v. National Action Financial Services, 2007 WL 4526510 at *7-8

13

(same); See also Pflueger v. Auto Finance Group, Inc .. 1999 WL 33 738434 at *4 (C. D. Cal., 1999);

14

cf. Carrigan v. Central Adjustment Bureau, Inc., 502 F. Supp. 468,470-471 (N.D. Ga. 1980)

15

(holding Plaintiffs FDCPA's claim for intentional infliction ofmental distress met state

16

requirements under Florida tort law); Venes v. Professional Service Bureau. Inc .. 353 N.W. 2d 671.

17

674-675 (Minn. Ct. App. 1984) (finding Plaintiff satisfied state elements of liED and could thus

18

recover emotional distress damages).

19

Consistent with the decisions issued in this district and the approach adopted by Chief Judge

20

Ishii, the Court will apply the California liED standard. See, Bolton v. Pentagroup Financial

21

Services, LLC .. 2009 WL 734038 at * 10-11. Under California law, to prove a claim for liED, a

22

plaintiff must show: (1) extreme and outrageous conduct by the defendant; (2) extreme or severe

23

emotional distress to the plaintiff; and (3) actual and proximate causation between the two. Spinks

24

v. Equity Residential Briarwood Apartments, 171 Cai.App.4th I 004, I 045. Cal. App 6 Dist. (2009)

25

citing Firestone Tire & Rubber Co .. 6 Cal. 4th 965, I 00 I, 25 Cal. Rptr. 2d 550 (1993). To be

26

outrageous, the defendant's conduct must be either intentional or reckless, and it must be so extreme

27

as to exceed all bounds of decency in a civilized community . .l.Q_, "Behavior may be considered

28

10

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outrageous if a defendant : ( 1) abuses a relation or position which gives him power to damage the
2

plaintiffs interest; 2) know the plaintiff is susceptible to injuries through mental distress, or 3) acts

3

intentionally or unreasonably with the recognition that the actions are likely to result in illness

4

through mental distress." Kiseskey v. Carpenters' Trust for So. California. 144 Cal. App. 3d 222.

5

230, 192 Cal Rptr. 492 Cal. App. 2 Dist. (1983). Courts have long recognized in collection cases

6

that the very nature of collection efforts often cause a debtor to suffer emotional distress. Bundren

7

v. Superior Court. 145 Cal. App. 3d 784. 193 Cal. Rptr 671 (1983); Bowden v. Spiegel, 96 Cal. App.

8

2d 793, 789 ( 1950). To be actionable as an liED claim, the conduct must go beyond "all reasonable

9

bounds of decency." Bundren v. Superior Court, 145 Cal. App. 3d at 789.
When considering whether a Plaintiff has suffered severe emotional distress, courts have

10
11

noted that "complete emotional tranquility is seldom attainable in this world, and some degree of

12

transient and trivial emotional distress is a part of the price of living among people. The law

13

intervenes only where the distress inflicted is so severe that no reasonable man could be expected to

14

endure it. The intensity and duration ofthe distress are factors to be considered in determining its

15

severity. It appears therefore, that in this context, severe emotional distress means, emotional

16

distress of such substantial quantity or enduring quality that no reasonable man in a civilized society

17

should be expected to endure it." Fletcher v. Western National Life Ins. Co., I 0 Cal.App.3d 376.

18

397, 89 Cal.Rptr. 78, Cai.App.4th Dist. (1970). Such injury may include all highly mental reactions

19

such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment,

20

worry and nausea. Golden v. Dungan 20 Cal. App.3d 295. 311, 97 Cal. Rptr. 577 (1971 ); Fletcher v.

21

Western Life Ins., Co., I 0 Cal. App. 3d at 397.
There is no requirement under California law that a Plaintiff provide corroborating evidence

22
23

in order to establish a claim for emotional distress.

2

However, a damages award cannot be based

24
25
26
27
28

2

In other circuits involving violations of the FDCPA, when courts have not required a Plaintiff to meet the more
stnngent s~ate II~D requireme~ts, a plaintiff al~eging .intang~ble loss must set forth evidence with specificity including
corroboratmg testimony or medical or psychological evidence m support of the damage award. Cousins v. Trans Union Co.
246 F. 3d 359.371 (5'" Cir. 200 1). Unsupported self-serving testimony by a plaintiffis not sufficient. Wantzv. Experian Info.
Systems, 386 F. 3d 829, 834 (7'" Cir. 2004), aborgated on other grounds in Safeco Ins. Co. of America v. Burr 551 U.S. 47
•

11

 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 13 of 19
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solely on conjecture or speculation. There must be competent proof of emotional distress suffered by

2

the Plaintiff. Austero v. Washington National Ins. Co. 132 Cal.App.3d 408,417, 182 Cal.Rptr. 919,

3

( 1982) disapproved on another ground in Brandt v. Superior Court, 37 Cal. 3d 813, 816-817, 210

4

Cai.Rptr. 211, 693 P.2d 796. (1985). Testimony of the plaintiff alone will suffice. Tan Jay

5

International, Ltd. v. Canadian Indemnity Co. 198 Cai.App.3d 695, 708, 243 Cai.Rptr. 907 (1988);

6

see also, Young v. Bank of America National Trust & Savings Assoc., 141 Cal. App. 3d 108, 190

7

Cal. Rptr., 122 (1983) (Plaintiff's testimony that she experienced embarrassment, shame,

8 helplessness, nervousness, headaches, insomnia, and frustration because of bank's failure to adjust
9

her credit card was sufficient evidence warranting jury instruction on emotional distress damages). 3

10

b.

Summary Plaintiff's Testimony

II

At the hearing on May 15, 2009, Plaintiff testified that she had been diagnosed with post-

12

traumatic stress disorder and generalized anxiety disorder following her service in the United States

13

Air Force in April2005. At the time ofthe incident alleged in the complaint, she was under a

14

psychiatrist's care for the above conditions and also had history of migraine headaches. Prior to this

15

incident, she would suffer panic attacks in which she experienced bouts of extreme panic, crying and

16

anxiety induced asthma attacks which resulted in difficulty breathing. She had been prescribed

17

Prozac, Valium and Albuterol to control these conditions at the time she was contacted by Defendant

18

John Anderson. Additionally, she was prescribed Pergaset to treat her migraine headaches. While

19

she was taking the Prozac daily, the Valium, Albuterol, and Pergaset, was only prescribed on an as

20
21

22
23
24
25
26
27
28

(2007).

3

While the Ninth Circuit has not specifically ruled on whether corroborating testimony or other evidence is
necessary to establish emotional distress damages pursuant to FDCP A, the court has held that emotional distress damages
generally may be proven in a number of ways, including through corroborating medical evidence or non-expert testimony
establishing "manifestations of mental anguish [and the occurrence of] significant emotional harm. Dawson v. Wash. Mut.
Bank., F.A. 390 F. 3d 1139, 1149-50 (9th Cir. 2004) (finding that damages for emotional distress are available under
bankruptcy law when a creditor violates the automatic stay that follows from the filing of a bankruptcy petition.). Emotional
distress damages can also be readily apparent without corroborative evidence where a plaintiff was a victim of egregious
conduct or where the "circumstances make it obvious that a reasonable person would suffer significant emotional harm. ld.
at 1150; See also, Zhang v. American Gem Seafoods, 339 F. 3d 1020, 1040 (9'h Cir. 2003) (upholding emotional distress
damages based only on testimony.); Fausto v. Credigy Services Corp., et al., 598 F. Supp. 1049 (N.D. Cal., Feb. 17, 2009).

12

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needed basis which she had not used regularly prior to this incident.
2

After Defendant contacted Plaintiff, Plaintiff began experiencing severe panic attacks which

3

resulted in uncontrollable crying throughout the day, insomnia, headaches, lack of energy, a loss of

4

appetite and difficulty breathing. She needed to take Valium tablets twice a day to calm her down,

5

as well as use her Albuterol inhaler more frequently. She also increased her use of Pergaset to

6

manage her migraine headaches, as well as over the counter medications to help her sleep.

7

Over the course of the five day period, Plaintiff contacted her psychiatrist because she was

8

afraid she would run out of the Valium. She made an appointment to see her psychiatrist as a result

9

of Defendant's contact. Plaintiff was particularly troubled when she learned that an unauthorized

10

user had been added to her T-Mobile account and contacted the police to report a false identity

11

claim. Moreover, the fact that Defendant was sending her messages about close friends and knew

12

specific personal information about them caused her considerable stress. Finally, Plaintiff was very

13

scared when she received a text message from Defendant indicating that he had taken pictures of her

14

late one evening. This was particularly disturbing because she lives in a rural area, she was home

15

alone, and did not know whether Defendant was outside her house.

16

Prior to the contact with Defendant, Plaintiff believed that her condition was getting better.

17

However, when she received the text messages from Defendant she "snapped" and did not know

18

what to do. On a scale of I to I 0 Plaintiff reported that her stress level was the highest it could be.

19

She believes that this incident set her treatment back and resulted in an aggravation of her pre-

20

existing condition. The aggravated symptoms lasted for approximately eight to nine months after

21

Plaintiff surrendered the car. Plaintiff has only recently returned to her level of functioning prior to

22

this incident.

23

c.

24

Based on Plaintiffs testimony, the Court finds that she has met the state requirements of an

Amount ofActual Damages Under the FDCPA

25

liED claim as Defendant's conduct goes beyond all reasonable bounds of decency. Defendant

26

engaged in extreme and outrageous conduct including abusing his position of authority as a debt

27

collector to harass, lie and intimidate Plaintiff. He contacting her repeatedly, took pictures of her,

28

13

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Case 1:08-cv-00960-AWI-GSA Document 81

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obtained personal information about her and her friends, and fraudulently added himself to
2

Plaintiffs T-Mobile account. It is clear that given the nature and the duration of distress

3

experienced by Plaintiff that she suffered severe emotional distress as a result of Defendant's

4

actions. The severity of her distress is evidenced by her need to take additional prescribed and over

5

the counter medications, as well as the need to consult her psychiatrist about the incident. She

6

experienced panic attacks which exacerbated her asthma, suffered from increased migraine

7

headaches, had difficulty sleeping, and would cry uncontrollably. This incident set Plaintiffs

8

treatment for post-traumatic stress and anxiety disorders back and it has taken Plaintiff several

9

months to return to her prior level of functioning. The distress Plaintiff experienced exceeds that

10
II

which any reasonable person in a civilized society should endure.
The remaining issue is the amount of actual damages that should awarded in this case.

12

Plaintiff has not provided the Court with any state liED cases defining an appropriate damages

13

award. 4 Plaintiff has, however, cited Panahiasal v. Gurney, 2007 WL 738642 in support of her

14

request for $50,000 in actual damages. Panahiasal v. Gurney was a case involving two plaintiffs

15

based on violations of the FDCPA. One plaintiff was awarded $50,000 in emotional damages based

16

on abusive debt collection practices which included repeated telephone abuse resulting in

17

embarrassment, fear, anger, panic, humiliation, nervousness, crying fits, difficulty eating and

18

sleeping, and diarrhea. Panahiasal v. Gurney, 2007 WL 738642 at *2. However, the other plaintiff

19

in Panahiasal v. Gurney was only awarded $10,000 after suffering from embarrassment, humiliation,

2o harassment, anger, anxiety, lack of concentration, and stress.

!.9.:. Plaintiff has also cited Clodfelter v.

21

United Processing, Inc., 2008 WL 4225557 (C.D. Ill. Sept. 12, 2008) in which a motion for default

22

judgment against a debt collector was granted awarding $351,000 in damages including $100,000 in

23

actual damages. This case involved a debt collection company with a long history of using abusive

24

tactics that called Plaintiff, his family members, and Plaintiffs employer, as well as threatening

25

criminal prosecution for failure to pay a $400 debt.

26
27
28

4

The Court was unable to locate any California cases identifYing the amounts of emotional distress damages
awarded in liED cases involving debt collection actions.

14

 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 16 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

Filed 06/26/09 Page 15 of 18

An examination of the cases applying the federal FDPCA standard reveals that the cases
2

cited by Plaintiff are on the high end of the damages award spectrum as most district courts have

3

awarded between $1,000 and $5,000. See, Baruch v. Healthcare Receivable Management, Inc ..

4

2007 WL 3232090 ( E.D.N.Y. 2007) ($5,000 awarded when consumer received numerous

5

threatening telephone calls and letters and as a result lost sleep, became depressed and suffered heart

6

problems); Cooper v. Ellis Crosby & Assoc .. Inc., 2007 WL 1322380 CD. Conn. 2003) ($3,000

7

emotional distress damages when debt collector misrepresented he was an investigator from the

8

bank, threatened to call Plaintiffs boss and to subpoena Plaintiffs hard drive on her computer);

9

Gervais v. O'Connell, Harris & Assoc., Inc., 297 F. Supp.2d 435 CD. Conn. 2003) ($1 ,500 emotional

10

damages awarded when defendant withdrew $2,500 from debtor's bank account and Plaintiff did not

11

seek medical attention but was taking anxiety medication for condition unrelated to Defendant's

12

actions); Chiverton v. Fed. Finance Group Inc .. 399 F. Supp. 2d 96 CD. Conn. 2005) (Damages of

13

$5,000 awarded for consumer's emotional distress under the FDCPA for debt collection practices

14

that lasted over a period of several months which included repeated phone calls to consumer's

15

workplace, leading consumer to fear losing his job, as well as directly contacting consumer's

16

supervisor); Teng v. Metropolitan Retail Assoc .. 851 F. Supp. 61 CE.D.N.Y. 1994) ($1,000 awarded

17

when debt collector who called plaintiffs place of employment several times and obtained the phone

18

number of plaintiffs supervisor, and identified himself as a city marshal threatening to take away

19

plaintiffs furniture). One jury award of$85,000 in emotional distress damages due to debt

20

collections agency's violation ofFDCPA was upheld when violations ofthe FDCPA had occurred

21

over several months. Nelson v. Eguifax Services, LLC, 522 F. Supp. 2d 1222, 1239 CC.D. Cal.

22

2007).

23

Here, Defendant's actions were egregious. The Court is also mindful that Plaintiff had

24

existing emotional conditions that were exacerbated by Defendant's conduct resulting in her need to

25

see a psychiatrist and obtain medication. However, even after considering all of these factors,

26

Plaintiffs request for $50,000 appears to be excessive given that Plaintiff was exposed to

27

Defendant's actions for a limited period of time. The Court has considered Plaintiffs declaration

28

15

 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 17 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

Filed 06/26/09 Page 16 of 18

and testimony, as well as the awards given in similar cases. Accordingly, the Court recommends
2
3
4

that Plaintiffbe awarded $25,000 in actual damages.

d.

Amount of Statutory Damages Under the FDCPA

Under the FDCPA, plaintiffs are entitled to statutory damages up to $1,000 pursuant to .12

5

U.S.C. § 1692(a)(2)(A). A court shall consider among other factors, "the frequency and persistence

6

of the noncompliance, and the extent to which the noncompliance was not intentional." 15 U.S. C. §

7

1692k(b)(l). The Court has concluded that based on the unanswered allegations in the complaint

8

and the nature of the allegations, Defendant's actions were intentional. Plaintiff is entitled to

9

$1 ,000 in statutory damages under this provision.

10

2. The Rosenthal Act

II

The Rosenthal Act requires an intent that is knowing and willing. Based on the unanswered

12

allegations in the complaint and the nature of the allegations, Defendant's actions were intentional.

13

Moreover, California Civil Code § 1788.17 states that every violation of the FDCPA is ipso facto

14

violation ofthe Rosenthal Act. Pursuant to Cal. Civ. Code§ 1788.30(b), Plaintiff is entitled to

15

$1 ,000 statutory damage award based on this violation.

16

3. Invasion of Privacy

17

In order to recover for the tort of invasion of privacy (intrusion upon seclusion), Plaintiff

18

must prove the following elements : (1) an intentional intrusion (physical or otherwise); 2) on the

19

solitude or seclusion of another; (3) that would be highly offensive to a reasonable person.

20

Panahiasal v. Gurney. 2007 WL 738642 at *2 citing Kuhn v. Account Control Technology. 865 F.

21

Supp. 1443 (D. Nev. 1994). Moreover, "improper conduct in knowingly and intentionally pursuing

22

a person to force payment of a debt, whether or not he owes it, may under some circumstances, give

23

rise to a right to damages for an invasion of privacy." Panahiasal v. Gurney. 2007 WL 738642 at *2

24

quoting Montgomery Ward v. Larragoite, 467 Pd. 399,401 (Supreme Court ofNew Mexico 1970).

25

A number of courts have held that repeated and continuous calls in an attempt to collect a debt give

26

rise to a claim for intrusion upon seclusion. Joseph v. J.J. Mac Intyre Companies. 281 F. Supp. 2d

27

1156. 1169 (N.D. Ca. 2002), citing, Shulman v. Group W. Prod. Inc., 18 Cal. 4 1h 200 (1998); See

28

16

 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 18 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

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also, Lowe v. Surpas Resource Corp. et al., 253 F. Supp. 2d 1209 (0. Kan. 2003).
2

Plaintiff has not requested an award for any damages for this cause of action. Furthermore,

3

while Defendant's abusive conduct meets all elements ofthis tort, Plaintiff has already been

4

awarded damages for emotional distress under the FDCP A. The Court will not recommend

5

additional damages be awarded based on this cause of action.

6

4. Attorney's Fees

7

The FDCPA and the Rosenthal Act specifically authorize an award of attorney's fees to a

8

prevailing plaintiff. 15 U.S.C. § 1692k(a)(3) & Cal. Civil Code.§ 1788.30 (c). The Court

9

determines an attorney fee award by calculating the "lodestar figure" which entails taking the

10

numbers of hours reasonably expended on the litigation and multiplying it by a reasonable hourly

11

rate. Hensley v. Eckerhart, 461 U.S. 424. 433 (1983); Ferland v. Conrad Credit Corp., 244 F. 3d

12

1145 (9th Cir. 2001) (In a FDCPA case, district court must calculate awards for attorney's fees using

13

"lodestar" method"). However, the court may enhance or reduce the lodstar figure. Fischer v. SJB-

14

P.O., Inc., 214 F. 3d II 15 (9th Cir. 2004). Additionally, "[a] court is justified in relying on a

15

requesting counsel's recently awarded fees when setting that counsel's reasonable hourly rate."

16

Lowe v. Elite Recovery Solutions, 2008 WL 324777 at *5 (E.D. Cal. Feb. 5, 2008) quoting Abad v.

17

Williams, Cohen & Gray, Inc., 2007 WL 1839914 at *4 (N.D. Cal. 2007).

18

In the first Motion for Default Judgment, counsel requested $12,240.00 in attorney's fees

19

which included fees for work done on this case related to other defendants. Plaintiff was ordered to

20

file a brief justifying this amount. Plaintiffs counsel has requested $6,579.00 in the current motion

21

and requests fees which apply only to this defendant. He has indicated that hourly billing rate is

22

$295 an hour. However, two courts, including one in this district, reduced this counsel's billing rate

23

to $250 an hour. Lowe v. Elite Recovery Solutions, 2008 WL 324 777 at *5 (E.D. Cal. Feb. 5,

24

2008); Scheuneman v. pt Credit of America, 2007 WL 1969708 (N.D. Cal. 2007). Counsel's rate

25

was also reduced to $275 an hour in Civitello v. pt Credit of America, Northern District of

26

California, Case No. C05-04944.

27
28

The Court finds that $250.00 per hour is a reasonable billing rate in this case. A review of
17

 Case 1:15-cr-00158-ELR-JFK Document 30-3 Filed 02/05/16 Page 19 of 19
Case 1:08-cv-00960-AWI-GSA Document 81

Filed 06/26/09 Page 18 of 18

the documents submitted by counsel in support of his request for attorney's fees indicates that he has
2

spent hours 22.1 hours on this case which totals $5,525.00 when the $250 per hour rate is applied.

3

There was also an additional3.8 hours billed for legal services provided at a rate of$115.00 per hour

4

amounting to $437.00. The Court will also recommend that this request be granted. Accordingly,

5

the Court will recommend that Plaintiffs counsel be awarded at total of $5,962.00 in attorney's

6

fees. The request for $350.00 for other costs is also reasonable.

7

RECOMMENDATION

8

For the reasons discussed above, the Court RECOMMENDS that Plaintiffs Amended

9

Motion for Default Judgment in favor of Plaintiff and against Defendant John Anderson, aka John

10

Edens, be GRANTED IN PART and DENIED IN PART for a total award amount of$ 33,312.00 to

II

be broken down as follows ;

12

2.

Plaintiff be AWARDED actual damages in the amount of $25,000;

13

3.

Plaintiff be awarded a total of $2,000.00 in statutory damages including $1 ,000 under
the Rosenthal Act and $1 ,000 under the FDCPA respectively;

14
15

4.

Attorneys' fees be awarded in the amount of$5,962.00; and

16

5.

Costs in the amount of $350.

17

These findings and recommendations are submitted to the district judge assigned to this

18

action, pursuant to 28 U.S.C. § 636(b)(l )(8). Within fifteen (15) court days of service of this

19

recommendation, any party may file written objections to these findings and recommendation with

20

the Court and serve a copy on all parties. Such a document should be captioned "Objections to

21

Magistrate Judge's Findings and Recommendation." The district judge will review the magistrate

22

judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(I)(C). The parties are

23

advised that failure to file objections within the specified time may waive the right to appeal the

24

districtjudge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

25
26

IT IS SO ORDERED.

Dated:

June 26, 2009

Is/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

27
28

18

 Case Document 30-4 Filed 02/05/16 Page 1 of 3

EXHIBIT 4

Case 1:15-cr-00158-ELR-JFK Document 30-4 Filed 02/05/16 Page 2 of 3
Case 1:08-cv-00960-AWI-GSA Document 83 Filed 09/01/09 Page 1 of 2

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JESSICA HARTUNG,
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)
)
)
)
Plaintiff,
)
)
v.
)
)
)
J.D. BYRIDER, INC.; JD BYRIDER OF
)
CHANDLER; CARNOW ACCEPTANCE )
COMPANY; JOHN ANDERSON; and T- )
MOBILE USA, INC., and DOES 1 through )
10 inclusive,
)
Defendants.
)
)

1:08-cv-00960 AWI GSA
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS
ORDER GRANTING DEFAULT JUDGMENT
AND DISMISSING DEFENDANTS
(Documents 72, 81, & 82)

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On June 26, 2009, the Magistrate Judge issued Findings and Recommendations that
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Plaintiff’s Amended Motion for Default Judgment against Defendant John Anderson, aka John
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Edens, filed on March 24, 2009, be granted in part, and denied in part, for a total award amount
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of $33,312.00. These Findings and Recommendations were served on all parties appearing in the
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action, and contained notice that any objections to the Findings and Recommendations were to be
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filed within fifteen (15) days of the date of service of the order. More than fifteen (15) days have
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passed and no party has filed objections.
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On August 11, 2009, the parties filed a stipulation to dismiss Defendants Byrider
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Franchising, Inc. (erroneously sued and served as J.D. Byrider, Inc.) and Grace Finance, Inc. dba
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CNAC (erroneously sued as CarNow Acceptance Company) with prejudice.
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 Case 1:15-cr-00158-ELR-JFK Document 30-4 Filed 02/05/16 Page 3 of 3
Case 1:08-cv-00960-AWI-GSA Document 83 Filed 09/01/09 Page 2 of 2

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted

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a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the

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Findings and Recommendations are supported by the record and proper analysis. The court also

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believes the stipulated dismissal is in the best interests of the parties and the courts.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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The Findings and Recommendations issued on June 26, 2009, are ADOPTED IN
FULL;

2.

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Plaintiff’s Amended Motion for Default Judgment in favor of Plaintiff and against
Defendant John Anderson, aka John Edens, is GRANTED IN PART and

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DENIED IN PART for a total award amount of $ 33,312.00 broken down as

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follows ;

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a.

Plaintiff is AWARDED actual damages in the amount of $25,000.00;

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b.

Plaintiff is awarded a total of $2,000.00 in statutory damages including

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$1,000.00 under the Rosenthal Act and $1,000.00 under the FDCPA

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respectively;

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c.

Attorneys’ fees are awarded in the amount of $5,962.00; and

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d.

Costs in the amount of $350.00.

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3.

Pursuant to the parties stipulation, Defendants Byrider Franchising, Inc.

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(erroneously sued and served as J.D. Byrider, Inc.) and Grace Finance, Inc. dba

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CNAC (erroneously sued as CarNow Acceptance Company) are DISMISSED

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WITH PREJUDICE.

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4.

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This order having resolved all outstanding claims against all Defendants, the
Clerk of the Court is DIRECTED to close this action.

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IT IS SO ORDERED.

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Dated:
0m8i78

August 31, 2009

/s/ Anthony W. Ishii
CHIEF UNITED STATES DISTRICT JUDGE

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 Case Document 30-5 Filed 02/05/16 Page 1 of 4

EXHIBIT 5

Debt Collector Owes Over $33K for Making Woman's Life 'Hell' - ABC News

Case 1:15-cr-00158-ELR-JFK Document 30-5 Filed 02/05/16 Page 2 of 4
ABC News

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Man Goes From Debt Collector To Debtor

Debt Collector Owes Over $33K for Making Woman's Life 'Hell'
By JOSEPH RHEEALEXA VALIENTE
Nov 28, 2014, 8:59 AM ET
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Man Goes From Debt Collector To Debtor

A debt collector who uses the name “John Anderson” when making calls is now a debtor himself after a
California woman sued him and the debt collection agency he worked for.
Anderson, whose real name and employer ABC News’ “20/20” has agreed not to divulge, said he’s “one of
the best in the world” at his job. He said he follows the law, for the most part.
“[I] push the edges a little bit sometimes,” Anderson told “20/20.” “You’re not supposed to call after 9
http://abcnews.go.com/Business/debt-collector-owes-33k-making-womans-life-hell/story?id=27093191[2/4/2016 5:33:45 PM]

 Debt Collector Owes Over $33K for Making Woman's Life 'Hell' - ABC News

Case 1:15-cr-00158-ELR-JFK Document 30-5 Filed 02/05/16 Page 3 of 4
o’clock at night. I might call at 9:15 [p.m.].”
US Faces Epidemic of Phony Debt Collectors: Prosecutor
Debt Collectors Respond to Your Top Complaints
When Debt Collector Robocalls Illegally Hijack Your Cell Phone
But after a court judgment, Anderson currently owes over $33,000 to Jessica Burke, who said Anderson
called her several times a day over $350 in late payments for a used car she bought in Arizona in 2007.
“He suggested that because he was a private investigator, he knows everything. He could find me no
matter where I was,” Burke said. “He knew who I worked for, and he had contacted my boss at that time
and released the information that I had a debt.”
Although she had never even seen the caller in person, Burke said he was even able to learn some of the
names of her coworkers and friends.
Anderson denied harassing Burke. “I wasn't really the one pursuing Jessica. The finance company pursued
her more than I did,” Anderson told “20/20.”
However, Anderson said he did get angry after he claims Burke got into a physical altercation with a
woman he sent out to repossess the car, which Burke denies. Anderson also admitted that he did make
remarks about Burke’s weight on the phone.
“She said, ‘I have a refund coming.’ I said, ‘A tax refund or a Jenny Craig refund?’ ... meaning that she was
overweight,” Anderson said. “It’s probably not the proper thing to do.”
Richard Doane, president of the Debt Collection Trade Group, told “20/20” that most collectors scrupulously
obey the law and provide an important public service.
“We’re not terrible people. The industry as a whole is a good thing,” Doane said. “We return $52 billion to
the economy every year as an industry. That is a major amount of money.”
But Burke said the collector she dealt with wasn't so careful about following the rules and would text her
constantly. She said she received around fifteen text messages a day, saying things such as, “Turn the car
in or I send the sheriff,” and “Porky Pig, two hundred-pound slob in a double-wide.”
Anderson said that he never sent Burke those text messages, instead claiming that it was a “collections
manager at that particular car lot.”
“[That’s] not in my vocabulary. That’s not something I would say,” Anderson said.
Even when Burke said she turned over the car to the finance company and repaid her debt, she said the
collector would not stop tormenting her.

http://abcnews.go.com/Business/debt-collector-owes-33k-making-womans-life-hell/story?id=27093191[2/4/2016 5:33:45 PM]

 Debt Collector Owes Over $33K for Making Woman's Life 'Hell' - ABC News

Case 1:15-cr-00158-ELR-JFK Document 30-5 Filed 02/05/16 Page 4 of 4
“I can’t tell you how many times I told him to stop,” Burke said. “There were times where I was crying on
the phone, begging him to stop.”
Finally fed up with being harassed daily, Burke hired an attorney and learned her privacy rights and what
she was entitled to as a debtor. She sued the debt collector and his agency for violating federal law by
using abusive collection tactics.
“That person made my life hell for a little bit,” Burke said. “I was terrified for weeks.”
Anderson never appeared in court. On June 29, 2009, the federal judge awarded Burke over $33,000, but
Anderson said he won’t pay.
“She’s not collected a dime. She never will,” Anderson said. “Because I don’t have it to pay her.”
Burke said she can’t be bothered to chase him for the money and is moving on.
“If I never see the money, that’s not really what matters to me,” Burke said. “I came out on top. I fought
back. He can’t bother me anymore.”

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 Case Document 30-6 Filed 02/05/16 Page 1 of 8

EXHIBIT 6

Case 1:15-cr-00158-ELR-JFK Document 30-6 Filed 02/05/16 Page 2 of 8

Department of Justice Policy Guidance:
Use of Cell-Site Simulator Technology

Cell-site simulator technology provides valuable assistance in support of important public
safety objectives. Whether deployed as part of a fugitive apprehension effort, a complex
narcotics investigation, or to locate or rescue a kidnapped child, cell-site simulators fulfi ll critical
operational needs.
As with any law enforcement capability, the Department must use cell-site simulators in a
manner that is consistent with the requirements and protections of the Constitution, including the
Fourth Amendment, and applicable statutory authorities, including the Pen Register Statute.
Moreover, any information resulting from the use of cell-site simulators must be handled in a
way that is consistent with the array of applicable statutes, regulations, and policies that guide
law enforcement in how it may and may not collect, retain, and disclose data.
As technology evolves, the· Department must continue to assess its tools to ensure that
practice and applicable policies reflect the Department's law enforcement and national security
missions, as well as the Department's commitments to accord appropriate respect for
individuals' privacy and civil liberties. This policy provides additional guidance and establishes
1
common principles for the use of cell-site simulators across the Department. The Department's
individual law enforcement components may issue additional specific guidance consistent with
this policy.

BACKGR OUND
Cell-site simulators, on occasion, have been the subject of misperceptioo and confusion.
To avoid any confusion here, this section provides information about the use of the equipment
and defines the capabilities that are the subject of this policy.
Basic Uses

Law enforcement agents can use cell-site simulators to help locate cellular devices whose
unique identifiers are already known to law enforcement, or to determine the unique identifiers
of an unknown device by collecting limited signaling information from devices in the simulator
user's vicinity. This technology is. one tool among many traditional law enforcement techniques,
and is deployed only in the fraction of cases in which the capability is best suited to achieve
specific public safety objectives.

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This policy applies to the use of cell-site simulator technology inside the United States in furtherance of criminal
investigations. When acting pursuant to the Foreign intelligence SmveiJlauce Act, Department of Justice
components will make a probable-cause based showing and appropriate disclosures to the court in a manner that is
consistent with the guidance set forth in this policy.

 Case 1:15-cr-00158-ELR-JFK Document 30-6 Filed 02/05/16 Page 3 of 8

How They Function
Cell-site simulators, as governed by this policy, function by transmitting as a cell tower.
In response to the sig nals emitted by the simulator, cellular devices in the proximity of the device
identify the simulator as the most attractive cell tower in the area and thus transmit signals to the
simulator that identify the device in the same way that they would with a networked tower.
A cell-site simulator receives and uses an industry standard unique identifying number
assigned by a device manufacturer or cellular network provider. When used to locate a known
cellular device, a cell-site simulator initially receives the unique identifying number from
multiple devices in the vicinity of the simulator. Once the cell-site simulator identifies the
specific cellular device for which it is looking, it will obtain the signaling information relating
only to that particular phone. When used to identify an unknown device, the cell-site simulator
obtains signaling information from non-target devices in the target's vicinity for the limited
purpose of distinguishing the target device.

What They Do and Do Not Obtain
By transmitting as a cell tower, cell-site simulators acquire the identifying information
from cellular devices. This identifying information is limited, however. Cell-site simulators
provide only the relative signal strength and general direction of a subject cellular telephone;
they do not function as a GPS locator, as they do not obtain or download any location
information from the device or its applications. Moreover, cell-site simulators used by the
Department must be configured as pen registers, and may not be used to collect the contents of
any communication, in accordance with 18 U.S.C. § 3127(3). This includes any data contained
on the phone itself: the simulator does not remotely capture emails, texts, contact lists, images or
any other data from the phone. In addition, Department cell-site simulators do not provide
subscriber account information (for example, an account holder's name, address, or telephone
number).

MANAGEMENT CONTROLS AND ACCOUNTABILITY2
Cell-site simulators require training and practice to operate correctly. To that end, the
following management controls and approval processes will help ensure that only knowledgeable
and accountable personnel will use the technology.
1. Department personnel must be trained and supervised appropriately. Cell-site
simulators may be operated only by trained personnel who have been authorized by
their agency to use the technology and whose training has been administered by a
qualified agency component or expert.

2

This policy guidance is intended only to improve the internal malllagement of the Department of Justice. It is not
intended to and does not create any right, benefit, trust, or responsibility, whether substantive or procedural,
enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities,
entities, officers, employees, or agents, or any person, nor does it create any right of review in an administrative,
judicial, or any other proceeding.

2

 Case 1:15-cr-00158-ELR-JFK Document 30-6 Filed 02/05/16 Page 4 of 8

2. Within 30 days, agencies shall designate an executive-level point of contact at each
division or district office responsible for the implementation of this policy, and for
promoting compliance with its provisions, within his or her jurisdiction.
3. Prior to deployment of the technology, use of a cell-site simulator by the agency must
be approved by an appropriate individual who has attained the grade of a first-level
supervisor. Any emergency use of a cell-site simulator must be approved by an
appropriate second-level supervisor. Any use of a cell-site simulator on an aircraft
must be approved either by the executive-level point of contact for the jurisdiction, as
described in paragraph 2 of this section, or by a branch or unit chief at the agency's
headquarters.
Each agency shall identify training protocols. These protocols must include training on privacy
and civil liberties developed in consultation with the Department's Chief Privacy and Civil
Liberties Officer.

LEGAL PROCESS AND COURT ORDERS
The use of cell-site simulators is permitted only as authorized by law and policy. While
the Department has, in the past, appropriately obtained authorization to use a cell-site simulator
by seeking an order pursuant to the Pen Register Statute, as a matter of policy, law enforcement
agencies must now obtain a search warrant supported by probable cause and issued pursuant to
Rule 41 of the Federal Rules of Criminal Procedure (or the applicable state equivalent), except as
provided below.
As a practical matter, because prosecutors will need to seek authority pursuant to Rule 41
and the Pen Register Statute, prosecutors should, depending on the rules in their jurisdiction,
either (1) obtain a warrant that contains all information required to be included in a pen register
order pursuant to 18 U.S.C. § 3123 (or the state equivalent), or (2) seek a warrant and a pen
register order concurrently. The search warrant affidavit also must reflect the information noted
in the immediately following section of this policy ("Applications for Use of Cell-Site
Simulators").
There are two circumstances in which this policy does not require a warrant prior to the
use of a cell-site simulator.

1. Exigent Circumstances under the Fourth Amendment
Exigent circumstances can vitiate a Fourth Amendment warrant requirement, but cell-site
simulators s611 require court approval in order to be lawfully deployed. An exigency that
excuses the need to obtain a warrant may arise when the needs of law enforcement are so
compelling that they render a warrantless search objectively reasonable. When an officer
has the requisite probable cause, a variety of types of exigent circumstances may justify
dispensing with a warrant. These include the need to protect human life or avert serious
injury; the prevention of the imminent destruction of evidence; the hot pursuit of a fleeing
felon; or the prevention of escape by a suspect or convicted fugitive from justice.

3

 Case 1:15-cr-00158-ELR-JFK Document 30-6 Filed 02/05/16 Page 5 of 8

In this circumstance, the use of a cell-site simulator still must comply with the Pen
Register Statute, 18 U.S.C. § 3121, et seq., which ordinarily requires judicial
authorization before use of the cell-site simulator, based on the government's certification
that the information sought is relevant to an ongoing criminal investigation. In addition,
in the subset of exigent situations where circumstances necessitate emergency pen
register auth01ity pursuant to 18 U.S.C. § 3 125 (or the state equivalent), the emergency
must be among those listed in Section 3125: immediate danger of death or serious bodily
injury to any person; conspiratorial activities characteristic of organized crime; an
immediate threat to a national security interest; or an ongoing attack on a protected
computer (as defined in 18 U.S.C. § 1030) that constitutes a crime punishabl,e by a term
of imprisonment greater than one year. In addition, the operator must obtain the requisite
internal approval to use a pen reg ister before using a cell-site simulator. In order to
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comply with the terms of this policy and with 18 U.S.C. § 3125, the operator must
contact the duty AUSA in the local U.S. Attorney's Office, who will then call the DOJ
Command Center to reach a supervisory attorney in the Electronic Surveillance Unit
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(ESU) of the Office of Enforcement Operations. Assuming the parameters of the statute
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are met, the ESU attorney w ill contact a DAAG in the Criminal Division and provide a
short briefing. If the DAAG approves, the ESU attorney will relay the verbal
authorization to the AUSA, who must also apply for a court order within 48 hours as
required by 18 U.S.C. § 3125. Under the provisions of the Pen Register Statute, use
under emergency pen-trap authority must end when the information sought is obtained,
an application for an order is denied, or 48 hours has passed, whichever comes first.

2. Exceptional Circumstances Where the Law Does Not Require a Warrant
There may also be other circumstances in which, although exigent circumstances do not
exist, the law does not require a search warrant and circumstances make obtaining a
search warrant impracticable. In such cases, which we expect to be very limited, agents
must first obtain approval from executive-level personnel at the agency's headquarters
and the relevant U.S. Attorney, and then from a Criminal Division DAAG. The Criminal
Division shall keep track of the number of times the use of a cell-site simulator is
approved under this subsection, as well as the circumstances underlying each such use.

In this circumstance, the use of a cell-site simulator still must comply with the Pen
Register Statute, 18 U.S.C. § 3121, et seq., which ordinarily requires judicial
authorization before use of the cell-site simulator, based on the government's certification
that the information sought is relevant to an ongoing criminal investigation. In addition,
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Knowing use of a pen register under emergency authorization without applying for a court order within 48 hours is
a criminal violation of the Pen Register Statute, pursuant to 18 U.S.C. § 3 l 25(c).
4

lo non-federal cases, Lhe operator must contact the prosecutor and any other applicable points of comtact for the
state or local jurisdiction.
5

ln requests for emergency pen authority, and for relief under the exceptional circumstances provision, the Criminal
Division DAAG will consult as appropriate with a National Security Division DAAG on matters within the National
Security Division's purview.

4

 Case 1:15-cr-00158-ELR-JFK Document 30-6 Filed 02/05/16 Page 6 of 8

if circumstances necessitate emergency pen register authority, compliance with the
provisions outlined in 18 U.S.C. § 3125 is required (see provisions in section l directly
above).

APPLICATIONS FOR USE OF CELL-SITE SIMULATORS
When making any application to a court, the Department's lawyers and law enforcement
officers must, as always, disclose appropriately and accurately the underlying purpose and
activities for which an order or authorization is sought. Law enforcement agents must consult
with prosecutors 6 in advance of using a cell-site simulator, and applications for the use of a cellsite simulator must include sufficient information to ensure that the courts are aware that the
technology may be used. 7
I. Regardless of the legal authority relied upon, at the time of making an application for use
of a cell-site simulator, the application or supporting affidavit should describe in general
terms the technique to be employed. The description should indicate that investigators
plan to send signals to the cellular phone that will cause it, and non-target phones on the
same provider network in close physical proximity, to emit unique identifiers, which will
be obtained by the technology, and that investigators will use the information collected to
determine information pertaining to the physical location of the target cellular device or
to determine the currently unknown identifiers of the target device. If investigators will
use the equipment to determine unique identifiers at multiple locations and/or multiple
times at the same location, the application should indicate this also.
2. An application or supporting affidavit should inform the court that the target cellular
device (e.g., cell phone) and other cellular devices in the area might experience a
temporary disruption of service from the service provider. The application may also
note, if accurate, that any potential service disruption to non-target devices would be
temporary and all operations will be conducted to ensure the minimal amount of
interference to non-target devices.
3. An application for the use of a cell-site simulator should inform the court about how law
enforcement intends to addlress deletion of data not associated with the target phone. The
application should also indicate that law enforcement will make no affirmative
investigative use of any non-target data absent further order of the court, except to
identify and distinguish the target device from other devices.

6

While' this provision typically will implkate notification to Assistant United States Attorneys, it also extends to
state and local prosecutors, where such personnel are engaged in operations involving cell-site simulators.
7

Courts in certain jurisdictions may require additional technical infonnation regarding the cell-site simulator's
operation (e.g., tradecraft, capabilities, limitations or specifications). Sample applications containing such technical
informa tion are available from the Computer Crime and Intellectua l Property Section (CCIPS) of the Criminal
Division. To ensure coll!rtS receive appropriate and accurate information regarding the technical infor mation
described above, prior to filing an application that deviates from the sample filings, agents or prosecutors must
contact CCIPS, which will coordinate with appropriate Department components.

5

 Case 1:15-cr-00158-ELR-JFK Document 30-6 Filed 02/05/16 Page 7 of 8

DATA COLLECTION AND DISPOSAL
The Department is committed to ensuring that law enforcement practices concerning the
8
collection or retention of data are lawful, and appropriately respect the important privacy
interests of individuals. As part of this commitment, the Department's law enforcement agencies
operate in accordance with rules, policies, and laws that control the collection, retention,
dissemination, and disposition ofrecords that contain personal identifying information. As with
data collected in the course of any investigation, these a uthorities apply to information collected
through the use of a cell-site simulator. Consistent w ith applicable exjsting laws and
requirements, including any duty to preserve exculpatory evidence,9 the Department's use of
cell-site simulators shall include the following practices:
1. When the equipment is used to locate a known cellular device, all data must be
deleted as soon as that device is located, and no less than once daily.
2. When the equipment is used to identify an unknown cellular device, all data must be
deleted as soon as the target cellular device is identified, and in any event no less than
once every 30 days.
3. Prior to deploying equiJPment for another mission, the operator must verify that the
equipment has been cleared of any previous operational data.
Agencies shall implement an auditing program to ensure that the data is deleted in the manner
described above.

STATE AND LOCAL PARTNERS
The Department often works closely with its State and Local law enforcement partners
and provides technological assistance under a variety of circumstances. This policy applies to all
instances in which Department components use cell-site simulators in support of other Federal
agencies and/or State and Local law enforcement agencies.

TRAINING AND COORDINATION, AND ONGOING MANAGEMENT
Accountability is an essential element in maintaining the integrity of our Federal law
enforcement agencies. Each law enforcement agency shall provide this policy, and training as
appropriate, to all relevant employees. Periodic review of this policy and training shall be the
8

In tJ1e context of this policy, the tenns "collection" and "retention" are used to address only the unique technical
process of identifying dialing, routing, addressing, or signaling information, as descr ibed by 18 U.S.C. § 3 I 27(3),
emitted by cellular devices. "Collection" means the process by which unique identifier signals are obtained;
"retention" refers to the period during which the dialing, routing, addressing, or signaling information is utilized to
locate or identify a target device, continuing until tlle point at whic!h such information is deleted.
9

It is not likely, given the limited type of data cell-site simulators collect (as discussed above), that exculpatory
evidence would be obtained by a cell-site simulator in the course of crimjnal law enforcement investigations. As in
other circumstances, however, to tlle extent investigators know or have reason to believe that information is
exculpatory or impeaching Ibey have a duty to memorialize lhat information.

6

 Case 1:15-cr-00158-ELR-JFK Document 30-6 Filed 02/05/16 Page 8 of 8

responsibility of eaclh agency with respect to the way the equipment is being used (e.g. ,
significant advances in technological capabilities, the kind of data collected, or the manner in
which it is collected). We expect that agents will familiarize themselves with this policy and
comply with all agency orders concerning the use of this technology.
Each division or district office shall report to its agency headquarters annual records
reflecting the total number of times a cell-site simulator is deployed in the jurisdiction; the
number of deployments at the request of other agencies, including State or Local law
enforcement; and the number of times the technology is deployed in emergency circumstances.
Similarly, it is vital that all appropriate Department attorneys familiarize themselves with
the contents of this policy, so that their court filings and disclosures are appropriate and
consistent. Model materials will be provided to all United States Attorneys' Offices and
litigating components, each of which shall conduct training for their attorneys.

*

*

*

Cell-site simulator technology significantly enhances the Department's efforts to achieve
its public safety and law enforcement objectives. As with other capabilities, the Department
must always use the technology in a manner that is consistent with the Constitution and all other
legal authorities. This policy provides additional common principles designed to ensure that the
Department continues to deploy cell-site simulators in an effective, appropriate, and consistent
way.

7

  

EXHIBIT 7
UNDER SEAL