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United States of America v. Todd Milton Ivery

October 12, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TODD MILTON IVERY, DEFENDANT.



The opinion of the court was delivered by: William S. Duffey, Jr. United States District Judge

OPINION AND ORDER

This matter is before the Court on Magistrate Judge E. Clayton Scofield's Report and Recommendation ("R&R") [130] that Defendant Todd Milton Ivery's ("Ivery") Motions to Suppress [115; 117] be denied.

I.BACKGROUND

This is a prosecution for alleged bank fraud. Ivery is charged with one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 20, 371, 1344, and nine counts*fn1 of making false statements to federally insured institutions in violation of 18 U.S.C. § 1014.

Defendants Dionne Michelle Whitted, Hung Quoc Nguyen, Tiffanie Yates, Catasha Browning, and Ivery, along with several unindicted co-conspirators, are alleged to have engaged in a scheme to defraud banks by submitting falsified home equity line of credit ("HELOC") applications. The Government has alleged twenty-six (26) instances in which Whitted filed fraudulent deeds purporting to convey an interest in residential real property to a "straw borrower." After each transfer of property, the straw borrower applied for a HELOC pledging the fraudulently conveyed property as collateral. Most of these applications also contained false representations about the straw borrower's financial strength.

Ivery is alleged to have created "false qualifying documentation such as false IRS Form W-2s, tax returns and pay stubs" to support the fraudulent HELOC applications made by certain of his co-defendants. (Superseding Indictment [63] at ¶ 6). Ivery used his Yahoo, Inc. ("Yahoo") e-mail service to communicate and coordinate with his co-conspirators in connection with the bank fraud scheme. In its investigation of other bank fraud schemes, the Government applied for two search warrants requiring Yahoo to produce various e-mail communications retained on Yahoo's servers that were sent or received by persons implicated in these other investigations. Ivery's e-mail account was one of the accounts for which the Government sought e-mail communications.

On April 24, 2008, Magistrate Judge Linda T. Walker reviewed the Government's application for a search warrant to be issued to Yahoo to include e-mails in Ivery's Yahoo e-mail account. Judge Walker, finding that probable cause existed, issued the warrant requiring Yahoo to allow a search of the e-mail accounts identified, including Ivery's. The affidavit upon which the warrant was issued was executed by Special Agent Joseph D. Stites of the Federal Bureau of Investigation. The affidavit indicated that Ivery had been forwarded an e-mail containing bank information for "your man," which Ivery forwarded to another e-mail account. An e-mail was sent to Ivery advising he "see if you can get $1500 per VOD ...


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