Professional Documents
Culture Documents
No. 12-4621
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Benson Everett Legg, Senior District
Judge. (1:10-cr-00580-BEL-3)
Argued:
Decided:
THACKER,
Circuit
Judges,
July 1, 2014
and
HAMILTON,
ARGUED:
Arthur
Samuel
Cheslock,
Baltimore,
Maryland,
for
Appellant.
Tamera Lynn Fine, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
pay
$1,213,347
Victims
in
Restitution
restitution,
Act
(MVRA),
18
pursuant
U.S.C.
to
the
3663A.
of
the
brief
filed
by
Seignious
appellate
counsel,
supplemental
brief
filed
by
Seignious,
and
our
courts
proceeding[s]
to
decide
whether
the
case
is
wholly
I.
A.
On April 12, 2012, Seignious pled guilty, without benefit
of a plea agreement, to one count of conspiracy to commit bank
fraud, 18 U.S.C. 1349, one count of access device fraud, id.
1029(a)(4), one count of bank fraud, id. 1344, and one count
of aggravated identity theft, id. 1028A.
to
make
retail
purchases
of
gift
cards
and
high-end
hearing,
the
district
court
conducted
five
such
agent,
summary
exhibit
of
physical
and
Jones
(Jones),
one
of
the
initial
four
During
employees
its
at
infancy,
legitimate
the
conspiracy
businesses
such
involved
as
recruiting
restaurants
and
and
then
Coconspirators.
deliver
those
numbers
to
the
Initial
card
numbers
in
hand,
the
Initial
Coconspirators
Initial
Coconspirators
also
counterfeited
photo
Initial
credit
Coconspirators
and
identification
merchandise
in
various
would
then
cards
retail
to
use
the
newly
purchase
stores.
To
minted
high-value
convert
their
also
explained
individuals
that
identifying
the
conspiracy
information
involved
from
local
purchase or rent cars and property and to open new credit card
accounts.
identifying
Jones
noted
information
that
to
Seignious
rent
- 4 -
an
used
another
apartment
persons
where
the
the
recruited
conspiracy
numerous
other
grew,
the
individuals
Initial
known
as
Coconspirators
strikers
to
This division
six
individuals
fraudulent
total,
credit
Jones
each,
cards
estimated
who
by
were
the
that
managed
Initial
over
supplied
with
Coconspirators.
In
fifty
and
individuals
were
during
her
fifteen-month
involvement
in
the
conspiracy.
Jermaine Dansbury (Dansbury), a mid-level manager who the
government refers to as a wrangler, estimated that some weeks
his
crew
purchased
between
$5,000
and
$20,000
worth
of
merchandise.
Secret Service Special Agent Scott Windish (Agent Windish),
one of the lead investigative agents in the case, testified last
on behalf of the government.
of
of
Government
a
Exhibit
thirty-six
page,
1A.
Government
color-coded
Exhibit
document,
1A
in
1827 credit card numbers with each credit card number and its
corresponding information coded in black (1,460), red (49) or
blue (318). 2
Per
Special
Agent
Windishs
testimony,
black
coding
or
found
on
computer
printouts
belonging
to
the
(J.A.
black,
approximately
specifically
Exhibit
1A
$606,000.
list
the
lists
actual
Although
date
upon
losses
Exhibit
which
each
1A
totaling
does
loss
not
occurred,
Special Agent Windish testified that he and the other agents who
prepared Exhibit 1A included losses with respect to a fraudulent
transaction only if the fraud occurred during the duration of
the conspiracy.
(J.A.
respect
to
possibility
the
credit
existed
card
that
the
numbers
coded
corresponding
in
loss
black,
the
listed
could
Special
Agent
Windish,
red
coding
represents
credit
for
example,
merchandise
purchased
with
receipt
the
in
counterfeit
vehicle
credit
in
which
card
was
information
coded
in
red
with
actual
losses
the
conspiracy
conspiracy.
or
on
computer
printouts
belonging
to
the
corresponding
information
coded
in
blue
with
actual
losses
the
conspiracy
which
evidence
was
put
on
initial
receipts.
(J.A.
731).
He
also
described
the
various
of
supervised
release.
The
$1,213,347
amount
is
the
the
government
asserted
below
it
had
established
in
the
without
district
making
court
findings
determined
on
the
the
record
restitution
regarding
the
Accordingly,
noted
this
timely
appeal
on
August
7,
2012.
the
banks
Exhibit 1A.
and
retailers
listed
as
victims
in
Government
- 9 -
B.
Seignious appellate counsel (Appellate Counsel) filed an
Anders brief, certifying that there are no meritorious issues
for
appeal,
but
questioning
whether
the
district
court
upon
our
courts
obligation
under
Anders
to
and
3664(a)-(d);
the
(2)
district
if
so,
court
sufficiently
whether
the
restitution
with
order
is
sufficiently
explained
its
reasoning
when
imposing
to
receive
restitution
and
their
respective
losses.
Our order also directed that, to the extent not already in the
record on appeal, the government provide a copy of each version
of the spreadsheet it had submitted to the district court to
- 10 -
support
its
arguments
regarding
losses
attributable
to
Seignious offenses.
In
opening
response
brief
to
our
order,
Appellate
Counsel
the
identified
issues
addressing
filed
and
an
the
in accordance with Anders, we set the case for oral argument and
directed counsel to focus on the restitutionary issues we had
ordered briefed.
II.
We first take up the issue of whether the government and
the district court sufficiently complied with 3664(a)-(d), the
statutory section setting forth the procedures for issuance and
enforcement of an order of restitution under the MVRA.
Id.
3663A(d).
A.
As a threshold matter, we address our standard of review
with respect to this issue.
the
district
courts
attention
any
deficiency
in
the
Crim.
P.
52(b)
(A
plain
error
- 11 -
that
affects
Fed.
substantial
U.S. 129, 134 (2009) (If a litigant believes that an error has
occurred
(to
his
detriment)
during
federal
judicial
error
the
intentionally
waived,
by
review
existence
has
of
relinquished
the
appellant.
four
legal
or
prongs.
error
that
abandoned,
Id.
at
The
has
i.e.,
135.
first
not
prong
been
affirmatively
The
second
prong
Id.
The third
States
v.
Olano,
507
U.S.
725,
734
Id.
(1993)).
which
ought
to
be
exercised
only
if
the
error
- 12 -
of
judicial
proceedings.
Id.
(internal
quotation
marks
MVRA
provides
that,
[n]otwithstanding
any
other
by
fraud
or
deceit],
the
court
shall
order,
in
under
this
title
. . . ,
including
any
offense
not
merely
for
the
losses
caused
by
particular
order
of
restitution
under
[the
MVRA]
shall
be
issued
and
Id. 3663A(d).
in
fashioning
restitution
order
including
to
the
extent
court
Section
3664(c)
Sentencing
Id. 3664(a).
to
disclose
specifies
Provisions)],
such
information
that
this
chapter
227
to
chapter
the
parties.
[(Miscellaneous
[(Sentences)],
and
Rule
Id. 3664(c).
information
from
victims,
id.
3664(d)(2),
and
the
restitution,
district
court
id.
can
3664(d)(3).
require
documentation or testimony.
other
Under
3664(d)(4),
information,
the
including
- 14 -
information,
up
to
ninety
days
after
sentencing.
Id.
3664(d)(5).
C.
Our thorough review of the record regarding the procedural
history leading to the district courts order of restitution
reveals
that
restitution
was
imposed
without
the
various
however,
This
imposition
of
procedural
is
so
entitles
Seignious
because,
assuming
restitution
requirements
in
this
of
case
to
no
arguendo
without
3664(a)-(d)
appellate
that
the
being
Such
the
various
observed
his
affected
the
substantial
outcome
of
rights,
the
i.e.,
district
that
court
such
error
proceedings.
imposed
regardless
of
the
same
whether
amount
every
of
restitution
requirement
of
on
Seignious
3664(a)-(d)
had
I impose restitution in
889).
The
district
courts
- 15 -
reference
to
the
amount
government
Fine
and
counsel
the
Assistant
district
court
United
earlier
States
during
Attorney
the
same
hearing:
[MS. FINE:]
And, finally, Your Honor, United
States has established that there are actual losses in
the amount of $1,213,347 in this case.
We would ask
that a restitution order in that full amount be
entered, joint and several with other defendants in
this case.
THE COURT:
please?
MS. FINE:
Certainly.
The amount that was
testified to by Special Agent Windish from his
spreadsheet . . . is $1,213,347.
Thank you, Your
Honor.
THE COURT:
Good.
(J.A. 866).
The spreadsheet to which government counsel refers in this
quoted
passage
from
the
transcript
of
Seignious
sentencing
under
for
USSG
2B1.1(b)(1).
increasing
amounts
of
This
levels
Guidelines
to
be
section
added
to
- 16 -
harm
that
resulted
from
the
offense),
USSG
harm
that
was
intended
to
result
from
the
offense
examine
Special
had
the
opportunity
to
cross
respect
fraud]
loss
to
USSG
that
2B1.1(b)(1),
the
government
the
has
amount
of
[actual
sufficiently
proven
(J.A. 518).
The
(J.A. 1020).
Notably,
as
conservative,
the
district
court
stated
in
its
preponderance
[of
the
evidence]
that
the
actual
losses
Id.
In
three
cooperating
witnessesJones,
- 17 -
Myers,
and
Dansbury.
appropriate
2B1.1(b)(1).
evidence.
he
loss
amount
to
be
used
in
applying
USSG
cannot
show
prejudice
resulting
from
restitution
being
of
3664(a)-(d)
being
observed.
Accordingly,
III.
We now turn to consider whether the restitution order is
adequately supported by the evidence.
- 18 -
See also
consider
whether
the
district
courts
factual
finding
that,
caused
$1,213,347
in
actual
losses
is
clearly
erroneous.
In answering
this question, we remain mindful of the Supreme Courts oftquoted delineation of when a district courts finding is clearly
erroneous:
that
it
would
have
decided
the
case
differently.
Rather, as
is
plausible
in
light
of
- 19 -
the
record
viewed
in
its
Id. at 57374.
is
entirety.
of
fact
plausible
in
light
of
the
record
viewed
in
its
the
bank
fraud
conspiracy
caused
$1,213,347
in
offense.
As
for
Appellate
Counsel,
in
the
(Supplemental
Brief,
evidence
the
in
$1,213,347.
Seignious
record
According
does
to
takes
not
the
position
that
the
actual
losses
of
support
Seignious,
at
most,
the
record
He complains
profitability
of
their
fraud
- 20 -
scheme
is
too
vague
to
be
credit
card
numbers
coded
in
black
(accounting
for
record
below
with
respect
to
restitution,
after
for
implicating
which
the
the
government
conspiracy
in
obtained
the
actual
evidence
loss
directly
listed
on
the
possibility,
as
Special
We readily
Agent
Windish
to
the
credit
card
numbers
indisputably
illegally
all
The
of
district
the
court
expressly
following testimony
credited
of
and
Seignious
issues,
including
the
amount
of
loss
under
2B1.1(b)(1):
Sherice Jones testified . . . that between 3 and 5
crews of between 3 and 5 strikers each went out every
day to make fraudulent purchases.
She explained
that, depending on the type of merchandise, each crew
could purchase anywhere from $5,000 to $10,000 in
merchandise per day.
The merchandise was then either
sold or returned, for cash, to the store where it had
been purchased.
Jones also testified that over the
course of the conspiracy, she estimated that the
scheme brought in millions of dollars worth of
merchandise by using thousands of fake credit cards.
Mandy Myers, a striker, testified that she personally
made between $400,000 and $500,000 in fraudulent
purchases over the course of her 15-month involvement
in the scheme.
Jermaine Dansbury, a wrangler,
- 22 -
USSG
than
third
were
actually
indicted,
(J.A.
1017);
(2)
and
hundreds
(3)
of
with
respect
individuals
to
were
the
being
scope
of
the
victimized
conspiracy,
and
. . . the
of
the
district
courts
actual
loss
finding,
Jones
the
MVRA.
Given
recognizes
that
that
the
[t]he
testimony
settled
of
law
of
defendants
this
circuit
accomplices,
In
challenge
to
the
district
courts
factual
finding
IV.
We next consider whether the district court sufficiently
explained its reasoning when imposing restitution.
At no point
of
its
reasoning
when
- 24 -
imposing
such
restitution.
plain
analysis
error
stops
review,
because
Olano,
Seignious
507
U.S.
cannot
at
732,
establish
734,
the
the
third
restitution
substantial rights.
upon
him
under
the
MVRA
affected
his
V.
The last issue for which we ordered briefing is whether the
district court erred in failing to specifically identify in its
July
25,
restitution
2012
and
judgment
their
the
victims
respective
eligible
losses.
to
Because
receive
Seignious
substantial
rights.
Puckett,
556
U.S.
at
135.
VI.
We have examined the issues raised by Seignious in his pro
se
briefing
conclude
and
that
all
his
Appellate
such
issues
Counsels
lack
Anders
merit.
brief.
Furthermore,
We
in
- 26 -