Criminal Law

In prosecution on conspiracy to commit access device fraud based on defendant's scheme to steal credit card information from store customers, Dist. Ct. did not err in finding that store customers were victims of defendant's crime under amended section 2B1.1 of sentencing guidelines, even though there was no evidence that said customers lost any money. Record showed that customers spent time attempting to undo unauthorized purchases attributed to defendant so as to qualify said customers as victims. Ct. also rejected defendant's argument that application of amended section 2B1.1, which was not in effect at time of offense, constituted violation of ex post facto clause of Constitution. Moreover, Dist. Ct. did not err in sentencing different defendant to below-guideline range of 40-months incarceration even though co-defendant had received only 24-month term of incarceration. Any disparity can be explained by defendant's extensive criminal history, and defendant could not base any sentencing challenge on perceived disparity of sentences with co-defendant.

Dist. Ct. did not err in rejecting defendants' requests for lower sentences on charge of alien being in U.S. after having been deported, even though defendants made request based on disparity of sentences given to others in different district courts that use fast-track programs. Defendants presented only illusory fast-track arguments where defendants failed to establish either that: (1) they promptly pleaded to charged offense, as well as agreed to factual basis for said plea and executed waiver of rights; and/or (2) they were similarly situated to eligible defendant in at least one fast-track district. Defendants also failed to submit likely sentencing range of fast-track district(s) to which they sought comparison.

In prosecution on drug conspiracy charge, Dist. Ct. did not err in admitting incriminating statements made by third-party under co-conspirator exception to hearsay rule, even though third-party at one time was DEA informant with respect to other investigations into other unrelated drug activity. While, as general rule, govt. informant's hearsay statements are not admissible under co-conspirator's exception to hearsay rule because informant cannot be acting in furtherance of conspiracy while serving as informant, record showed that instant third-party's statements were admissible because they were made at time when he was not serving as informant in any DEA investigation. Ct. rejected defendant's argument that third-party's prior status as informant precluded him from acting in furtherance of defendant's or any other unrelated conspiracy.

In prosecution on wire fraud charge, Dist. Ct. did not err in imposing $10 million restitution order that did not include dollar-for-dollar credit for value of stock that defendant had tendered to court at earlier date pursuant to terms of plea agreement. While record showed that said stock had depreciated in value since date of said tender, Dist. Ct. could properly conclude that value of stock on date of tender was not operative value when imposing restitution order where record showed that stock was merely deposited into escrow account as security for defendant's payment of anticipated restitution and fine obligations. Accordingly, defendant was credited for only depreciated value of stock as of date of actual restitution order.