United States of America v. Chad Vincent Iacona

In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐1632
U NITED STATES OF A MERICA,
Plaintiff‐Appellee,
v.
C HAD VINCENT IACONA,
Defendant‐Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 11‐CR‐30120‐MJR — Michael J. Reagan, Judge.
A RGUED FEBRUARY 26, 2013 — D ECIDED A UGUST 27, 2013
Before EASTERBROOK, Chief Judge, and R OVNER and
WILLIAMS, Circuit Judges.
R OVNER , Circuit Judge. On December 2, 2011, Chad Vincent
Iacona was convicted of fraud in connection with an access
device and aggravated identity theft, in violation of 18 U.S.C.
§§ 1029(a)(2) and 1028A respectively. Those charges stemmed
from his actions in obtaining a Wells Fargo Visa card using the
identification of another person, Nancy Clymer, without her

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2 No. 12‐1632
authorization, and with the intent to defraud her and her
business, D & L Investigations.
Iacona worked as a process server for D & L Investigations
(“D&L”), a private investigation service owned by Nancy
Clymer. D&L was formed by Clymer and her husband Donald,
and Clymer continued to operate it after Donald’s death in
1989. The business mainly consisted of providing process
service for local attorneys, but also encompassed some surveil‐
lance and other investigative work.
In May 2005, Iacona agreed to purchase the business from
Clymer. Because Clymer had previously attempted to sell the
business only to have the purchasers default within a month,
she demanded the implementation of certain protections from
Iacona. In the purchase agreement with Iacona, Clymer
structured the arrangement so as to retain ownership of the
business while Iacona paid $2000 per month for two years
toward a total purchase price of $95,000, with a balloon
payment of the remaining balance after those two years.
During that payment period, Clymer would retain ownership
of the business, but Iacona would run the business. The
agreement also required Iacona to secure a line of credit in
order to pay the recurring monthly expense for an investiga‐
tive research service. Those terms were later renegotiated
when Iacona had difficulty paying, and Clymer ultimately
signed over the business to him in early 2008.
The testimony at trial established that Iacona quickly began
to establish numerous lines of credit in the name of D&L and
in Clymer’s name. Almost immediately after the purchase
agreement, Iacona obtained from George Weber Chevrolet a

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No. 12‐1632 3
Chevrolet Malibu either in a lease or purchase arrangement
(the testimony diverged on that point). The paperwork for that
vehicle signed by Iacona listed him as the president of D&L
although Clymer was the president at that time, and indicated
that he had worked for D&L for 16 years even though at that
time he had worked at D&L for only about a month of its 16‐
year existence. The paperwork represented the gross annual
income of D&L as “$500,000 plus,” but Clymer testified that in
its best year D&L earned only approximately $50,000. When
Clymer learned of Iacona’s acquisition of the Malibu, and that
he had also opened a credit account with Office Depot, she had
her attorney send a letter to the dealership and to Office
Depot—with a copy to Iacona—informing them that Iacona
had no authority to open a line of credit in D&L’s name and
that he was not the president of D&L.
Iacona nevertheless proceeded to open up numerous other
credit cards, which he used to incur significant debt on
purchases unrelated to the business, and continued to do so for
the ensuing two years. The suspect purchases included
multiple charges at Bed, Bath & Beyond, Pet Smart, grocery
stores, restaurants, and charges related to a swimming pool
and the purchase of a pool table. One of those credit lines, with
Capital One, was obtained through an internet application in
which Clymer’s name, social security number, and date of
birth were used. Only one credit card, however, was the focus
of the criminal complaint—a Wells Fargo Visa card.
The testimony was undisputed that Rebecca Rasmussen,
Iacona’s sister who was hired by Iacona as a secretary for D&L,
applied for the Wells Fargo Visa by phone and represented
herself to be Clymer. Rasmussen used Clymer’s social security

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4 No. 12‐1632
number and personal information as well as information about
D&L to obtain the Wells Fargo Visa with a credit limit of
$50,000, split evenly into a $25,000 account in Clymer’s name
and a $25,000 account in Iacona’s name. Under the terms of the
card, Clymer was personally liable for the debts on both
accounts. Iacona testified, however, that he was not present
when Rasmussen made that call and that she did not do so
under his direction. Instead, he asserts that he instructed her to
obtain a credit card with the lowest interest rate possible, and
that she obtained the Wells Fargo Visa on her own initiative.
The government presented the testimony of Rasmussen
that Iacona instructed her to call to obtain that Wells Fargo
Visa and that he was present during that call and supplied her
with Clymer’s personal information in response to the ques‐
tions during that phone application. The government also
played a recording of that call to allow the jury to hear pauses
in Rasmussen’s answers which she attributed to the delay in
obtaining the answers from Iacona.
In addition, the government presented testimony that
Iacona maintained control over the credit cards and payment
statements. Rasmussen testified that she only opened mail
related to the process serving business, and that credit card
mail was left in a pile for Iacona to open himself. Postal
inspector Matthew Murrow, who had investigated the allega‐
tion of identity theft, provided some corroboration for that
contention. He testified that when he executed a search
warrant at D&L, he observed a large pile of bills, credit card
statements, and mail collection notices, some opened and some
unopened, on the desk in Iacona’s office, and that the stack was
3 or 4 inches high. He further testified that in that stack was a

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No. 12‐1632 5
credit card in Iacona’s name as an authorized user on an
account in Clymer’s name, and that a corresponding card for
Clymer on that account was found in the garbage can next to
Iacona’s desk.
As part of the investigation, Murrow contacted Iacona to
question him regarding the lines of credit opened in Clymer’s
name. Shortly after Murrow spoke with him, Iacona contacted
Wells Fargo and attempted to make arrangements to pay off
the debt for which Clymer was liable. He also called Clymer
and left her a voicemail which she played for Murrow. In that
recording, Iacona stated:
I’ve got some Postal Inspector calling me … about
credit cards under or it has your name on it or
something like—account so, uhm, it shouldn’t have
anything to do with your name. We took out some
accounts that were through D & L with the tax ID
number so—uhm, I don’t know if you know any‐
thing about that or not, but this guys [sic] calling me
—asking about your name, so. Call me back so I can
figure out what’s going on with this.
Trial Transcript, Vol. II, 11/29/11 at 203. Contrary to that
voicemail message in May 2009 by Iacona questioning whether
Clymer knew about the accounts, Iacona testified at trial that
he had discussed with Clymer the lines of credit years earlier.
Murrow also testified as to the debts incurred on the
Capital One and Wells Fargo accounts, and provided summary
exhibits indicating that the accounts were used overwhelm‐
ingly for personal rather than business‐related expenses.
Murrow testified that the Wells Fargo card with Clymer’s

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6 No. 12‐1632
name, as opposed to the one with Iacona’s name on it, was
used solely for transactions that did not involve face‐to‐face
contact, such as internet purchases or ATM withdrawals.
Finally, he provided a summary chart demonstrating a pattern
of balance transfers from credit card accounts for which Iacona
or D&L was liable to the Capital One and Wells Fargo accounts
for which Clymer was personally liable.
Iacona’s defense was that the use of Clymer’s name to
obtain credit through Wells Fargo was done without his
knowledge by Rasmussen on her own initiative in response to
his directive merely to obtain a low interest credit card for the
business. Although initially acknowledging that he signed the
agreement at George Weber Chevrolet and the signature card
at the bank, he testified that those documents may have been
forwarded via fax or mail and that Rasmussen may have
signed them for him. He further testified that the signatures on
the checks paying the credit card bills were not uniform and
were not done by him. He stated that both Rasmussen and the
office assistant that eventually replaced her, Khara Moehle,
handled credit card statements and that they often forged his
name on checks to pay the bills when he was out of the office.
In response to that testimony, the government called as a
rebuttal witness Moehle, who, consistent with Rasmussen’s
testimony, declared that she only opened mail from attorneys
related to the process serving and investigative activities of the
business and that credit card statements were left for Iacona.
Other than his own testimony, the only other defense witness
presented by Iacona was his father‐in‐law who was presented
as a character witness.

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No. 12‐1632 7
In closing argument, the prosecutor repeatedly highlighted
the contradictions between the testimony of Iacona, and that of
the other witnesses such as Rasmussen, Clymer, Murrow and
Moehle. On appeal, Iacona argues that those closing statements
went too far, and that by referring to Iacona as a liar the
prosecutor engaged in misconduct that denied him a fair trial.
Specifically, Iacona points to the following excerpts from the
closing argument, which we set forth verbatim because the
severity of the language and the context can be significant in
evaluating such claims of prosecutorial misconduct:
Did you hear them tell the kind of bold falsehoods
Mr. Iacona swore and told to you under oath, raise
your hand oath? He even denies it is his signature
on the signature card at the bank, and every single
payment to the credit card companies, not my
signature.
Trial Transcript, Vol. IV, 12/1/11 at 159‐60.
It is the same signature on all of the checks, both
when Rebecca Masmussen [sic] was there and when
Khara Moehle was there. I must say, ladies and
gentlemen, Khara came in as a rebuttal witness
because who could have imagined Mr. Iacona
would have denied writing any of the checks.
Id. at 160.
You know, you have heard evidence through the
testimony of the defendant himself and the examina‐
tion of the defendant himself where you kind of get
an idea about Mr. Iacona’s honesty, not just here in

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8 No. 12‐1632
the courtroom or on the witness stand, but his
honesty in the dealings with all sorts of people that
he gets money from.
Id. at 161.
You are entitled to consider every bit of Mr. Iacona’s
testimony under oath here in this courtroom. It is
evidence too and I submit to you ladies and gentle‐
men that as you evaluate, you will agree amongst
yourselves that he damned himself with his false
testimony; not a mistake, not a misunderstanding.
Id. at 170.
Iacona also challenges an additional statement, but it is
clear that the reference in that statement is to Iacona’s charac‐
terization of the government witnesses as liars, not a reference
to Iacona’s dishonesty, and therefore it is irrelevant to this
argument. We note, however, that even if the statement were
directed at Iacona, the outcome of this appeal would be the
same.
In order to evaluate a claim of prosecutorial misconduct to
determine if it deprived a defendant of a fair trial, we conduct
a two‐part inquiry. United States v. Tucker, 714 F.3d 1006, 1012
(7th Cir. 2013). First, we determine whether the challenged
conduct was improper, and second, we evaluate the conduct
in light of the trial as a whole to decide if it deprived the
defendant of a fair trial. Id. Therefore, Iacona must establish as
an initial matter that the statements were improper, and if he
meets that hurdle then we consider whether the improper
statements operated to deny him due process.

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No. 12‐1632 9
Iacona asserts that through those comments in closing
arguments, the prosecutor accused him of lying on the witness
stand multiple times and asked the jury to infer from those lies
that he was a dishonest person. He maintains that such
conduct was improper because it distracted the jury from its
duties through sheer repetition and was not based on a fair
reading of the evidence. Furthermore, he argues that the
statements were prejudicial because the misconduct was
severe, he did nothing to invite it, the impact was not amelio‐
rated by jury instructions or rebuttal opportunities, and the
case against him was weak.
In general, whether prosecutorial misconduct was sufficient
to require judgment as a matter of law is reviewed for abuse of
discretion. United States. v. Hills, 618 F.3d 619, 635 (7th Cir.
2010). Iacona failed to object to the statements made in closing
argument, however, and therefore we review only for plain
error. Accordingly, we will reverse only if Iacona can demon‐
strate an error that is plain, that affects his substantial rights,
and that seriously affects the fairness, integrity or public
reputation of the judicial proceeding, effectuating a miscar‐
riage of justice. United States v. Martin, 692 F.3d 760, 763 ‐764
(7th Cir. 2012); Tucker, 714 F.3d at 1011‐1012.
Iacona falters at the first step of the two‐part test, in that he
cannot show that the statements by the prosecutor were
improper. Iacona argues that there are several limits on the
ability of the government to call a defendant a liar, and that
two such limits were violated here: first, the attacks were so
repetitive as to go beyond the bounds of appropriate zealous
advocacy and to enter into the realm of unfounded character
attack; and second, the comments were not based on the

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10 No. 12‐1632
evidence introduced at trial. An analysis of the record demon‐
strates that neither of those contentions are valid.
We have repeatedly held that “[w]here the character and
credibility of the defendant are at issue and the evidence
allows the inference that the defendant has been less than
truthful, the prosecutor does not err in closing argument by
referring to the defendant as a liar.” United States v. Catalfo, 64
F.3d 1070, 1080 (7th Cir. 1995); United States v. Turner, 651 F.3d
743, 752 (7th Cir. 2011). That does not mean the prosecutor is
without limits in pursuing such a line of attack. Indeed, we
have recognized that “where the terms ‘fabricated’ or ‘lies’ are
used repeatedly to the point of excessiveness, the line between
the ‘undignified and intemperate’ … and the hard or harsh but
fair may be crossed with a resultant impairment of ‘the calm
and detached search for the truth to which a criminal trial
should aspire.’” United States v. Craig, 573 F.2d 455, 494 (7th
Cir. 1977); Catalfo, 64 F.3d at 1080; United States v. Chaimson, 760
F.2d 798, 811 (7th Cir. 1985). Therefore, we consider whether
the references to Iacona’s veracity in this case crossed that line.
The central question in determining whether this was error
is whether the comments reflected reasonable inferences from
the evidence adduced at trial rather than an expression of the
prosecutor’s personal opinion, and whether the comments
became so excessive as to impair the jury’s detached search for
the truth. Turner, 651 F.3d at 752; Chaimson, 760 F.2d at 811;
Catalfo, 64 F.3d at 1080; United States v. Goodapple, 958 F.2d
1402, 1409‐1410 (7th Cir. 1992). If the evidence supports the
comments, a prosecutor is at liberty to speak harshly about the
defendant. Turner, 651 F.3d at 752. The statements made in this
case fall comfortably within the permissible zone.

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No. 12‐1632 11
The testimony provided by Iacona was directly contra‐
dicted by the testimony of multiple government witnesses, as
well as by physical evidence. In each of the challenged state‐
ments, the prosecutor points out those contradictions. For
instance, in the first challenged statement, the prosecutor asks
the jury if it heard the bold falsehoods that Iacona swore under
oath, and then points to Iacona’s denial that it was his signa‐
ture on the signature card at the bank and on each of the
checks to the credit card companies. That was a fair character‐
ization of the evidence. Iacona’s contention that he did not sign
the signature card at the bank was contradicted by his own
testimony, in which he initially acknowledged that he accom‐
panied Clymer to the bank to become a signatory on the
account. Moreover, his statement that the checks were not
signed by him but were handled by his office assistants was
contradicted by both Rasmussen and Moehle, who testified
consistently that Iacona handled all such bills. There was
nothing presented at trial that would establish any motive for
those employees to lie, nor was there any testimony as to any
financial or other gain that accrued to them from those credit
cards. In fact, the undisputed testimony was that the purchases
made on the cards benefitted Iacona alone. All of that evidence
rendered his statements inherently incredible, and the prosecu‐
tor did not err in pointing out those credibility problems. The
second challenged statement covers similar ground, in that the
prosecutor again referenced the similarity between the
signatures on the checks, and the unlikelihood that signatures
during Rasmussen’s tenure would appear so similar to those
made during Moehle’s employment if signed by them and not

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12 No. 12‐1632
Iacona. That is a fair commentary on the logical import of the
evidence.
The final two statements relating to Iacona’s truthfulness
were pleas to the jury to consider the testimony of Iacona and
the history of his dealings with people, and to determine his
honesty from all of that evidence. In those statements, the
prosecutor emphasized to the jury that it was entitled to
consider Iacona’s testimony under oath as evidence and to
evaluate it, and the prosecutor argued that such testimony
evidenced his guilt. Iacona has failed to point to anything in
those statements that is an inaccurate statement of the law.
Iacona’s testimony was evidence in the case, and the jury
properly could determine his credibility based on all of that
evidence. At no point did the prosecutor inject his personal
opinion as to Iacona’s credibility; instead, the prosecutor
pointed out the inconsistencies between Iacona’s testimony
and that of the other witnesses, and encouraged the jury to
consider all of that evidence in determining his credibility and
his guilt. That is neither improper nor excessive, particularly in
a case such as this in which the only defense presented was
Iacona’s testimony. In such a case, it is unremarkable that the
prosecutor in closing arguments would address the veracity of
the defendant’s testimony in light of the testimony of the other
witnesses.
As we noted in Turner, a “canonical statement in this field”
is that a prosecutor may strike hard blows as long as they are
not foul ones. Turner, 651 F.3d at 752; Berger v. United States,
295 U.S. 78, 88 (1935). Where the evidence supports an infer‐
ence that the defendant has lied, then a comment in closing
argument as to his credibility, including referring to him as a

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No. 12‐1632 13
liar, is a hard but fair blow, as long as the argument is made
based on the evidence and not a comment as to the prosecu‐
tor’s personal opinion. Turner, 651 F.3d at 752; Catalfo, 64 F.3d
at 1080. That is precisely what occurred here, and accordingly
the statements were not improper. Because there was no error,
we need not consider the question of prejudice.
AFFIRMED.

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