Criminal Law

In prosecution on charge of mail fraud affecting financial institution in violation of 18 USC section 1341, defendant’s guilty plea to said charge was not void, even though defendant argued that indictment failed to specify means of identification of each of 200 alleged victims, which, in turn, failed to afford him proper notice of charges against him. Said argument was rejected in Singer, 730 F.3d 120, and instant indictment otherwise contained sufficient detail with respect to time frame in which defendant committed offense and means by which defendant committed charged offense. Also, govt. gave defendant names of victims in pretrial disclosures, which gave him notice, as well as time, to object to victims claiming harm from defendant. Ct. also rejected defendant’s claim that indictment was duplicitous because it contained aggregate multiple offenses in single count, since indictment alleged credit card scheme that concerned only one violation.

Dist. Ct. erred in sentencing defendant to below-guidelines, 59-month term of incarceration on wire fraud and aggravated identity theft charges, where said sentence was based, in part, on finding under section 1B1.3(a)(1) of USSG that defendant was responsible for losses imposed by co-schemers in wire fraud scheme that were incurred at time when defendant was still in prison. Relevant conduct does not include conduct of members of conspiracy prior to defendant joining said conspiracy, even if defendant knows of said conduct, and evidence, as well as Dist. Ct.’s findings, did not support full loss amount used to calculate loss attributable to defendant. Moreover, defendant’s statements at guilty plea hearing were ambiguous as to when he actually joined scheme, and his statements merely tracked broad language of indictment that did not otherwise support instant loss calculation by Dist. Ct. Moreover, error was prejudicial, since defendant’s calculation of loss from time he claimed to have participated in scheme corresponded to two-level difference in enhancement calculated by Dist. Ct., and Dist. Ct. failed to indicate that it would have imposed same sentence under defendant’s lower calculation.

Defendant waived sole issue on appeal as to whether Dist. Ct. erred in calculating defendant’s applicable sentencing guideline range by counting local ordinance violation for drug consumption in public park in defendant’s criminal history score. Record showed that defendant raised different argument in Dist. Ct. with respect to calculation of his criminal history score, and defendant waived, as opposed to forfeited, instant issue on appeal, where defendant informed Dist. Ct. on multiple occasions that it should include instant local ordinance violation when calculating his criminal history score. Moreover, defendant’s failure to challenge inclusion of ordinance violation in Dist. Ct. was matter of trial strategy.

Dist. Ct. did not err in sentencing defendant to 108-month term of incarceration on bank fraud charges arising out of defendant’s submission of car loan applications that contained false information about applicant’s income and vehicle identification. While defendant argued that Dist. Ct. improperly applied three-level managerial/supervisory enhancement under section 3B1.1(b) of USSG because Dist. Ct. had failed to make explicit finding that he had direct control over anyone else involved in scheme, Dist. Ct. could properly find that said enhancement was applicable, where: (1) defendant used his own car dealership business as cover for obtaining fraudulent loans and was instrumental in design of overall scheme; (2) defendant supplied necessary vehicle information used to secure loans; and (3) defendant played integral role in distributing proceeds to scheme’s participants and retained significantly greater amount of said funds generated by scheme than anyone else involved.

Dist. Ct. did not err in sentencing defendant to 240-month term of incarceration, even though: (1) Dist. Ct. imposed said sentence after Ct. of Appeals had reversed three out of five convictions on drug and firearm charges in which Dist. Ct. had imposed same sentence; and (2) Dist. Ct. based said sentence in part on finding by preponderance of evidence that defendant had actually committed misconduct at issue in charges to which he had been acquitted. Record supported preponderance of evidence finding that defendant had planted drugs and gun in third-party’s car and had motive, as well as opportunity to do so, where: (1) evidence tied defendant to said drugs and guns; and (2) finding that govt. had failed to prove said planting of drugs and firearm under reasonable doubt standard did not preclude instant finding under preponderance of evidence standard. Moreover, regardless of whether defendant qualified for career offender status treatment based on his current conviction for using house for drug-related purposes, Dist. Ct. indicated that it would have imposed same sentence without consideration of career offender enhancement. Also, defendant’s 240-month sentence was not substantively unreasonable, even though said sentence would be upward departure from 84-to-105-month sentencing range if career offender enhancement did not apply, given defendant’s extensive criminal history and given facts of instant case, which indicated that defendant had sold drugs in presence of girlfriend’s children and while defendant was next to school.