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Relevant Conduct Reviewed in Wire Fraud Sentence Appeals

U.S. v. Salem, Case No. 08-2378/3226/3238 (C.A. 7, Mar. 9, 2010)

In these appeals we consider the application of the relevant conduct guideline, U.S.S.G. § 1B1.3(a)(1)(B), in a case of a jointly undertaken criminal activity. Aida Salem pled guilty to one count of wire fraud and was sentenced to 97 months’ imprisonment. Bogdan Ganescu and Gianina Simon pled guilty to several counts of wire fraud and two counts of receipt of stolen funds. They were sentenced to 78 months and 52 months, respectively. The defendants appeal their sentences, challenging the district court’s relevant conduct findings. For the reasons that follow, we remand the sentences for further findings concerning the jointly undertaken criminal activity under U.S.S.G. § 1B1.3(a)(1)(B) and, if necessary, for further findings regarding the amount of the loss and the number of victims under U.S.S.G. § 2B1.1(b)(1) and (2).

A superseding indictment charged that Aida Salem, Bogdan Ganescu, Gianina Simon, eleven codefendants, and others in the United States and abroad knowingly devised and participated in a scheme to defraud. Beginning in approximately November 2003 through at least August 2006, more than 2000 victims of the scheme were tricked into believing that they were purchasing items listed for sale on Internet sites and wired funds to the defendants and other co-schemers in amounts in excess of $6 million. The victims never received the items.

As part of the scheme, individuals located outside the United States, principally in Romania (the “foreign coschemers”), posed as sellers of items and lured victims through fraudulent advertisements on Internet sites, typically eBay. When a victim agreed to purchase an item, he or she was instructed to send payment by wire transfer, typically through Western Union. The foreign co-schemers believed that victims in the United States would be more likely to transmit their money if the foreign co-schemers posed as sellers in the United States. Therefore, the foreign co-schemers developed a network of individuals in the United States, including all fourteen defendants and other co-schemers, who were willing to repeatedly pick up the funds/fraud proceeds from a Western Union agent. After retaining a portion (typically 20% to 40%) of the fraud proceeds received, the defendants and other co-schemers transmitted the balance of the proceeds to Romania.

In order to reduce the risk of apprehension by law enforcement, the co-schemers obtained and used false identification documents when picking up the fraud proceeds from a Western Union agent. This required ongoing communication between the persons who managed the receipt of fraud proceeds in the United States—schemers such as Adrian Fechete, Raimondoray Cerna, and Gabriel Constantin—and the foreign coschemers. The co-schemers communicated their changing aliases to the foreign co-schemers, and the foreign co-schemers incorporated the alias names into their Internet communications with potential victims, usually as the “seller,” “seller’s agent,” or “eBay agent” of the item offered for sale. Once someone agreed to purchase an item, he or she was instructed to send the funds via Western Union to the alias name provided by a defendant to the foreign co-schemers. The victim provided funds via Western Union in payment for the item. The foreign co-schemers gave the appropriate coschemer the information necessary to complete the wire transfer that had been provided by the victim. Then the co-schemer presented himself or herself, using the matching alias identification documents at a Western Union, representing himself or herself as the authorized payee for the wire transfer of funds and received the funds.
 

 

Jurisdiction: U.S. Court of Appeals, Seventh Circuit
Circuit Court Judge(s)
Frank Easterbrook
John Tinder
Diane Wood

 
Trial Court Judge(s)
John Darrah

 
Appellant Lawyer(s) Appellant Law Firm(s)
Susan Kister

 
Appellee Lawyer(s) Appellee Law Firm(s)
Stephanie Michelle Zimdahl US Attorney's Office

 

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strategic. see, e.g., united states v. rosenberg, 585 f.3d 355, agreement added that for several months salem and ianc so, salem argues this wasn't waiver, but forfeiture, simon for purposes of the loss amount and number of ity" and concluding that the evidence was insufficient failed to establish necessary relationship between offense $1,176,967.81 and represented losses to approximately argued that the court erred in focusing exclusively on million. the government asserted that ganescu received based on this, the government's position before sen- a strategic choice not to present an argument. id. in garcia to a within-guidelines sentence of 78 months and reasonably foreseeable to [salem] then that be- psrs, indicated that photographs obtained during the 22 nos. 08-2378, 08-3226 & 08-3238 for determining the scope of a jointly undertaken and even encouraged to file a later written memorandum wire transfers of fraud proceeds of approximately tion, he and other co-schemers, including panaitescu, in the psrs in this case at the time of sentencing, the were arrested together when officers discovered they obtained and used a series of alias identification docu- moloman, stefan dumitru, lucian nanau, alexandru, and em was reasonably foreseeable to simon. these the government asserted that a conservative estimate adopt the psr at the sentencing hearing). scope of the criminal activity the defendant agreed to the foreign co-schemers gave the appropriate co- jointly undertaken criminal activity. if the court relies respect to bledea. otherwise, the district court must re- tinued into december 2006 and that he received fraud show that they assisted or agreed to promote conduct and ianc's conduct, that reduction may have been in at 527. review--clear rather than plain error--we cannot record and circumstances of this case, the lack of an reasonable foreseeability of the conduct of others, the "in furtherance of the jointly undertaken criminal activ- and after determining the scope of the criminal activity during the time of salem's participation in the used the same attorney that ianc and bledea used fol- printed form. and the judge signed the "statements of this case, but also "other co-schemers" who played a defraud users of internet auction sites such as ebay, and to defraud. on appeal, ganescu and simon do not the acts of cerna and ianc. an explicit finding that other drug transactions in which the defendants and other co-schemers in amounts in showed frequent call activity between ganescu's and foreign co-schemers that enabled him to receive the vic- 531. we said that the defendant agreed to supply his lowing their arrests on charges arising out of the scheme 12 nos. 08-2378, 08-3226 & 08-3238 findings as to the scope of salem's agreement to countable for clear error. it therefore has waived its right simon to a below-guidelines sentence of 52 months. the reasonably foreseeable to salem does not equate with proceeds for themselves and caused the remainder-- received wire transfers of funds from victims of the (noting 1b1.3's requirement that relevant conduct be review where court adopted the psr's findings that corresponding sixteen-level increase to ganescu's and nos. 08-2378, 08-3226 & 08-3238 5 the district court found by a preponderance of the the principal issue at ganescu and simon's sen- concert with others' " is included within the definition of sentences, challenging the district court's relevant scheme, approximately 2100 victims lost more than the losses caused during the time they participated in that the acts of these co-schemers were in furtherance defendant's drug trafficking was a common scheme v. arroyo, 406 f.3d 881, 889-90 (7th cir. 2005) (finding but in this case, the court's adoption of the psrs' find- tended the loss was more than $200,000 but not more phrase. cerna, and gabriel constantin--and the foreign co- not necessarily follow from the fact that a co-schemer's as part of the scheme, individuals located outside the funds via western union in payment for the item. ganescu and simon acknowledge that when a party that the conduct of ganescu, ianc, constantin, bledea that he was aware that his codefendants such as conviction. yet we understood from the court's specific ment to one count of wire fraud, 18 u.s.c. 1343. the nos. 08-2378, 08-3226 & 08-3238 11 salem learned about the scheme from codefendant the application of the relevant conduct guideline, of reasons in a later written judgment where the court foreseeable to them. mation in the presentence report, including the bledea, and em were reasonably foreseeable to simon plaintiff-appellee, either ganescu or simon. if the loss amount were adjusted tions for clear error. united states v. rollins, 544 f.3d gentlem[e]n who recruited my client, and also managed including panaitescu, fechete, constantin, moloman, sentencing, shall state in open court the reasons for its coconspirator with an unknown grade of powder the defendant, who had been convicted of possession excess of $6 million. the victims never received the items. offense. id. to pay $404,091 in restitution. determine the defendant's accountability for the conduct to present himself to western union agents and pro- enforcement, the co-schemers obtained and used false wire fraud and was sentenced to 97 months' imprison- "information on currency exchanges . . . such as which ments under u.s.s.g. 2b1.1(b). salem, however, con- typically ebay. when a victim agreed to purchase an victims for which they should be held accountable as salem pled guilty pursuant to a written plea agree- v. 55 (7th cir.) (suggesting court's explanation was insuf- dant. but unstated inferences do not provide an them the items they believed they were purchasing. acosta and wilson are also distinguishable because the4 schemers were in furtherance of ganescu's and simon's find that those cocaine sales were relevant conduct; over a thousand victims would suffer losses of uncharged conduct had the necessary relationship to aida salem taken criminal activity with sufficient clarity and specific- charged conduct, we have upheld the court's decision when completing the western union . . . form[s]." the simply another way of stating the requirement that the ficient where court merely said it considered the infor- cludes appellate review altogether." "forfeiture . . . is the (c)(1)). and this court has not understood soto-piedra as determinations of the amount of the loss and number order to determine his base offense level based on a affirmatively stated that he knew the defendant could ganescu and simon had an identical guidelines range via western union to the alias name provided by a defen- tims--numbers that would result in guidelines enhance- fraudulent activity and he did nothing to further the of whom salem was aware was receiving wire transfers in activity and reasonably foreseeable in connection with four victims would not affect the increase in offense levels before easterbrook, chief judge, and wood and the district court did not mention bledea's name at this2 defendants." the agreement provided one example from failed to state the reasons for its sentence), cert. denied, 130 conduct findings. for the reasons that follow, we the defendant had participated were part of the same 525 f.3d at 531 (quoting u.s.s.g. 1b1.3(a)(1)(b)). under 2b1.1(b)(1)(i) (loss more than $1,000,000 but no more tion documents between themselves and with several mation, their focus on the foreseeability of the conduct devised and participated in a scheme to defraud. begin- in applying u.s.s.g. 1b1.3(a)(1)(b), the district court sidering all of the evidence, we are left with a definite 52 months, respectively. the defendants appeal their hold the defendants accountable for the full $6 million, alleged in the indictment); united states v. melton, 131 remand the sentences for further findings concerning an unknown intention. we used the "assist or agree to bledea, and em (emanuel matula) were in furtherance of wire transfers of fraud proceeds in amounts totaling district court did not clearly define the scope of "the the scope of a defendant's jointly undertaken criminal willing to repeatedly pick up the funds/fraud proceeds despite the absence of an express finding that the sales teristics depend not only on the offense of conviction upheld its implicit relevant conduct determination meaningful appellate review. see harris, 567 f.3d at 853- wl 85929 (u.s. feb. 22, 2010), we reiterated: "waiver is the from a western union agent. after retaining a portion this oversight is understandable. jointly undertake, and then determine whether the we found waiver where defense counsel did not merely waived the right to invoke that standard). hence, we vided them with the information relayed from the nos. 08-2378, 08-3226 & 08-3238 13 scope of the joint criminal activity undertaken by a defen- acceptance of responsibility). salem was anticipating a conviction. wilson, 502 f.3d at 723. we therefore held point, but it had just mentioned him as one of the codefendants to the judgment in a criminal case, ao form 245b, see foreseeability to them of the acts of these co-schemers. despite the lack of an express finding . . . . more than 2000 victims suffered losses in excess of $5.4 nanau were also receiving wire transfers from the 431 f.3d 1035, 1042-43 (7th cir. 2005) (holding court overall scheme); u.s.s.g. 1b1.3 cmt. n.2 (illustration based on the amount of the loss, u.s.s.g. 2b1.1(b)(1)(i), schemers. the co-schemers communicated their changing 10 nos. 08-2378, 08-3226 & 08-3238 simon based on their close relationship with significant district court erred because it neglected to make a (7th cir. 1998) (holding court clearly erred in not sufficient factual findings. for example, the adoption of f.3d 1400, 1405 (10th cir. 1997) (indicating that reason- 487, 498 n.12 (7th cir. 1996) (noting that since defense states. therefore, the foreign co-schemers developed a nanau participated in the scheme, and it was2 level under the guidelines, a court determines the base in the fraudulent scheme was limited to his own that offenses were related), with united states v. ortiz, district court omits a finding on a key element during rizescu's staged wedding, which was part of a fraudulent $63,000 from at least 29 victims. ganescu and simon also that he should be held responsible for their conduct. express finding by the district court does not warrant manner may suffice under a plain error standard of [scheme]." u.s.s.g. 1b1.3 cmt. n.2; see also fox, 548 f.3d neither the psrs nor the judge's statements at sen- the government asserts that it is clear from the record drug quantity that the district court found as part of his a "jointly undertaken criminal activity." id. (quoting conduct in absence of an explicit finding at sentencing ment. bogdan ganescu and gianina simon pled guilty spiracy and foreseeable to the defendant"). therefore, soto- where court found at sentencing that defendant had their sentences, with one qualification. the qualification according to the government's version, during the offense level and applies appropriate specific offense cristian bentan. according to the government's spread- culpability, and finding that she had been deterred and taken criminal activity. the finding that co-schemers "he undertook and participated in criminal activity assess its relevant conduct findings and salem's sentence. powder cocaine to crack was within the scope of [the admitted in her plea declaration that between approxi- better equipped we are to assess whether an imposed 18 u.s.c. 1343, and two counts of receipt of stolen of salem's jointly undertaken criminal activity, then the fraud proceeds from additional victims. they also ad- 14 nos. 08-2378, 08-3226 & 08-3238 scope of the specific conduct and objectives embraced 1b1.3(a)(1)(b) and, if necessary, for further findings scheme to defraud. argument is not persuasive. in united states v. garcia, 580 evidence that the conduct of ianc, constantin, bledea, and identification documents when picking up the fraud scheme, he and his co-schemers took and received exchanges of which ganescu advised his co-conspirators." ings was only a pro forma checking of a box on a pre- vided the memorandum does not change the ultimate instead, the "assist or agree to promote" language is that criminal activity." united states v. fouse, 578 f.3d jointly undertaken criminal activity, then ganescu's and government's exhibit 018. the exhibit attributes approxi- activity. salem has not challenged the district court's the government asserts that salem waived any objec- of crack, which affected his base offense level. the defen- to concede that salem could be held accountable for conduct of others for which a defendant is accountable through fraudulent advertisements on internet sites, participants in the scheme such as ianc and constantin. the jointly undertaken criminal activity under u.s.s.g. salem's plea agreement stated that "[w]hile partici- government to support its argument. see united states must make a preliminary determination of the scope of cance of those facts). and a district court is authorized constantin, and ianc. it also stated that salem and cerna "yes." salem cannot undo these concessions. i. background 20 nos. 08-2378, 08-3226 & 08-3238 government later learned that his participation con- dispute the accuracy of these factual assertions, but agents." u.s.s.g. 1b1.3(a)(1)(b)). thus, a defendant may be held hearing. in addition, we note that salem acknowledged that he tinder, circuit judges. courts in those cases considered whether the defendant's own court must reevaluate its relevant conduct findings and reasonably foreseeable actions of co-participants in the to treat the uncharged activities as relevant conduct agree. the scope of the jointly undertaken criminal activity evidence that: activity. id. at 531-32. second, although the district court codefendants cerna, gabriel constantin, adrian ianc, on the amount of loss and number of victims were there- piedra did not impose a heightened standard for deter- united states of america, setting aside the finding that salem, ganescu, and simon defendant may be held liable only for those acts or omis- district court's findings regarding the reasonable ton, 548 f.3d 589, 590-93 (7th cir. 2008) (upholding concerning the jointly undertaken criminal activity for whatever amounts were obtained from the currency aliases to the foreign co-schemers, and the foreign (typically 20% to 40%) of the fraud proceeds received, that "reasonably foreseeable conduct of others would appeals from the united states district court over a six-year span); bacallao, 149 f.3d at 720-21 (finding agreement described the fraud scheme and stated that states would be more likely to transmit their money if instead relying entirely on the presentence report which particular defendant agreed to jointly undertake (i.e., the namely constantin, bledea, ianc, "individual em," and action information" and "occasionally traveled together . . . therefore concluded that the district court's relevant internet communications with potential victims, usually u.s.s.g. 2b1.1(b)(2)(c). the resulting guidelines range argue about what inferences may reasonably be drawn aged the receipt of fraud proceeds in the united inclusion of cerna's and ianc's acts as relevant conduct. scheme" in which that group of co-schemers participated. defendants' psrs in its "statement of reasons" attachment admitted that they retained a portion of the fraud nos. 08-2378, 08-3226 & 08-3238 21 establishing the defendant's responsibility for un- of others virtually ignored the scope of the joint criminal characteristics. u.s.s.g. 1b1.1(b). specific offense charac- that salem was "accepting responsibility for all of the ity. a district judge may draw reasonable inferences that even where, as here, the focus at sentencing is on the entirely on the psr to make a finding as to the scope of $2.5 million and $7 million in losses and over 250 vic- and participated in the scheme from then until approxi- claiming there was no strategic reason for his attorney states--schemers such as adrian fechete, raimondoray as well as the government's argument about the signifi- dant had not sold crack to anyone, so we said that in as "sb." ganescu admitted to sharing common sources worked from codefendant gabriel constantin. they also (2d cir. 2004) (holding that district court did not satisfy tions received directly by these co-schemers totaled presentence report, as well as the government's rea- ning in approximately november 2003 through at least in the nos. 08-2378, 08-3226 & 08-3238 9 ii. discussion aida salem, bogdan ganescu, criminal activity. aida salem pled guilty to one count of offered no evidence to suggest "that converting the s. ct. 1032 (2009); united states v. molina, 356 f.3d 269, 277 detailed the defendant's regular history of drug sales currency exchanges . . . to receive fraud proceeds, and during the time period that salem participated in the tion to being held accountable for the conduct of cerna spiracy and he was not challenging drug quantity for a united states v. soto-piedra, 525 f.3d 527, 531 (7th cir.), according to the government's version, phone records we take this opportunity to remind the district courts startrow=61 (last visited feb. 19, 2010), but this was all fourteen defendants and other co-schemers, who were false identification documents with a number of his co- 54 ("an appellate court's review of a sentence is for court must determine whether the acts of ianc, constantin, he furthered. finally, the defendants argue that the more than $126,000--to be transmitted to the foreign co- also "shared a common source of western union trans- ganescu's, and simon's sentences for further findings at 723 (relevant conduct finding not clearly erroneous detail about the nature of the criminal activity that schemers were not acts in which he joined or which august 2004, they learned about the scheme and how it soning concerning the significance of those facts in same conduct as the convicted offense), and united states individuals such as mr. cerna, mr. [ianc], the fore unwarranted. salem also argues that the acts of his co- salem's attorney stated at salem's sentencing hearing when receiving fraud proceeds from western union without plea agreements, to several wire fraud counts, he admitted that he used alias identification documents iii. conclusion conduct is not sufficient to bring that conduct within where court in its written statement of reasons adopted conclusion that the defendant's agreement to participate inadequate for several reasons. in some circumstances, time that ganescu and simon participated in the scheme, was recruited, managed, and supervised by both cerna and 1b1.3(a)(2). id. at 279-80. we stated that the court tencing define the scope of each defendant's jointly under- duct), and united states v. bacallao, 149 f.3d 717, 720-21 reasonableness, and the more explanation we have, the undertake. united states v. fox, 548 f.3d 523, 531-32 (7th ianc, and cerna. salem admitted that at cerna's direc- reasonable foreseeability to the defendant of the is this: ganescu conceded in his reply brief that he is liable salem's counsel did not merely fail to object to the tinder, circuit judge. in these appeals we consider able foreseeability is not enough to establish liability proceeds from approximately 129 victims.) simon crack cocaine was foreseeable to the defendant, it of conviction and other drug transactions). the clear for coconspirators' acts under 1b1.3; such acts must 548 f.3d at 531. first, the district court did not determine 406 f.3d 857, 860 (7th cir. 2005) (concluding that the late march through late april 2004 involving salem and nos. 08-2378, 08-3226 & 08-3238 3 co-schemers. salem further admitted that he personally fechete, ianc, constantin, mihai bledea, moloman, hann, determine the scope of the criminal activity that salem, define the scope of that activity. cf. united states v. single- and firm conviction" that a mistake has been made. did not consider whether that possession was foreseeable co-schemers incorporated the alias names into their see, e.g., acosta, 85 f.3d at 279-80 (upholding district criminal activity. see united states v. dean, 574 f.3d 836, findings led the court to find a loss amount of $1,176,967.81 schemer the information necessary to complete the pating in the scheme, [salem] shared a common source of presentence investigation report ("psr") indicated that mitted to sharing common sources of false identifica- recited in the psr provided the necessary connection and at the sentencing hearing, salem's counsel stated as part of its determination of a defendant's offense item, he or she was instructed to send payment by h t t p ://w w w .u s c o u r t s .g o v /fo r m s /u scform s.c fm ? of greater than $1 million but less than $2.5 million. including constantin, ianc, bledea, and rizescu. the this language, arguing that it heightened the standard substantial amount of crack, the government had to between the cocaine sales and the defendant's offense simon's sentences shall stand. otherwise, the district u.s.s.g. 1b1.3(a)(1)(b), in a case of a jointly undertaken 844-45 (7th cir. 2009) (quoting the "assist or agree to criminal activity. we do not read soto-piedra in this way. promote" language in concluding that the government counsel failed to object at trial, the court would cured by a deferential clear error standard of review. fox, of 78 to 97 months. the district court sentenced ganescu standards apply to these subsections of the guideline. remanded for resentencing. id. at 533. the psr and noted that the other acts were part of the v. wilson, 502 f.3d 718, 722-23 (7th cir. 2007); united states recidivism was not a factor in her case, the court sentenced tencing was that salem was responsible for between of heroin with the intent to distribute, challenged the they ultimately received the victims' funds from jointly undertaken by ganescu and simon, the district the government's version of the offense ("govern- intentional relinquishment of a known right, and it pre- by the defendant's agreement)."). then the court must [w]here it is clear from the record that the district than $2,500,000) and 2b1.1(b)(2)(c) (more than 250 victims). tims' wire transfers." it gave several examples court's relevant conduct finding where at sentencing the photos included pictures of ganescu and simon at wire transfer that had been provided by the victim. then on whether additional cocaine involved relevant con- criminal activity. at 531-32 & n.7; soto-piedra, 525 f.3d at 531-32. the the transcript reads "young," but we believe it should be1 jeopardy. thus, salem waived the right to challenge conclusion that he was responsible for 14 to 15 kilograms defendant that the defendant joined in that co-schemer's application of the guidelines de novo. garrett, 528 f.3d for the strategic reason that she sought a reduction for finding of jointly undertaken criminal activity before reduction in his offense level for acceptance of responsi- course of conduct or common scheme as the offense of what the waiver doctrine contemplates." id. international dimensions, and it occurred over the his sentence could not be based on more than the part so we consider the sufficiency of the district court's findings in this case. district court's determination that a series of cocaine nos. 08-2378, 08-3226 & 08-3238 15 conduct was relevant conduct under u.s.s.g. 1b1.3(a)(2). planation of the reasons for the sentences imposed falls admitted that in order to participate in the scheme, they conduct findings were insufficient and vacated and em was reasonably foreseeable to ganescu. it found neglected to make that finding in this case. and if a be avoided if counsel would bring such an omission to 24 nos. 08-2378, 08-3226 & 08-3238 august 2006, more than 2000 victims of the scheme was 97 to 121 months. the court sentenced salem to alexandru, panaitescu, lucan, dumitru, and nanau matching alias identification documents at a western government argued that much of the conduct of others no. 06 cr 923--john w. darrah, judge. of stolen funds. they were sentenced to 78 months and in connection with the joint criminal activity. id. we the 1b1.3(a)(1)(b) analysis, the effort of an appeal could failure to timely assert a right," which is reviewed for plain several problems with the relevant conduct analysis. fox, and supervised him." at the sentencing hearing on1 approximately october 2004 and june 2005, he received ganescu, and simon agreed to jointly undertake. then, the district court need not reevaluate ganescu's account- reach to mr. cerna and mr. ianc," salem's attorney said, and sentencing memorandum, salem acknowledged that completed. 3553(c); see also united states v. harris, 567 f.3d 846, 854- items listed for sale on internet sites and wired funds to clearly erred when it failed to make specific findings the defendants and other co-schemers transmitted the element of the relevant conduct analysis: the scope of the in connection with the joint criminal activity. fox, 8 nos. 08-2378, 08-3226 & 08-3238 nos. 08-2378, 08-3226 & 08-3238 23 sales he had made to another individual were relevant from them. relevant conduct under u.s.s.g. 1b1.3(a)(1)(b). the short of the requirement that "[t]he court, at the time of stated earlier, a district court must first determine the of conviction where record could support the conclusion must be in furtherance of the joint criminal activity that in finding that other drug transactions were relevant finding of the scope of the criminal activity that the made no specific factual findings and did not expressly elements of the [relevant conduct] analysis" cannot be the offense of conviction to support a relevant con- able foreseeability of the co-schemers' acts only; it made here, the district court made findings as to the reason- wire transfer, typically through western union. the and ioan moloman. cell phone records revealed that report that contained insufficient factual findings). al- the defendant in question undertook. this is another 726-27 (7th cir. 2008) (holding court did not plainly err id. (citations omitted). because it was clear that the court case did not impose a heightened standard. see united were part of the same course of conduct as the heroin 820, 838 (7th cir. 2008). under this standard, we will error standard applied); united states v. cotnam, 88 f.3d nal activity. the government argues that, given the were in possession of counterfeit identification. the of victims for which the defendants should be held ac- and a six-level increase under 2b1.1(b)(2)(c).3 fraudulent pretenses. they admitted that not later than of others under subsection (a)(1)(b), the court must resided in the same apartment complex and that they f.3d 528, 541 (7th cir. 2009), cert. denied, no. 09-8459, 2010 the sentencing judge's attention before the analysis is fails to raise an issue in the trial court, we generally here, the district court did not adopt the findings in conduct. 85 f.3d at 277, 279. the district court did not forfeiture by considering whether the defendant made 4 nos. 08-2378, 08-3226 & 08-3238 and a total number of victims in excess of 250, with a uphold the district court's findings "unless, after con- ments that falsely identified them as the persons to actions of co-participants in the scheme, specifically prove that he "should be held responsible for the losses sentence meets that standard."). duct finding. id. at 280 (quotation omitted). however, scheme in an amount in excess of $400,000. the muszka ladislau, and radu rizescu. then it gave received about $313,000 from approximately 163 victims. no finding as to the scope of the jointly undertaken crimi- from information in a psr to make a finding as to the foreseeable acts and omissions of others in furtherance foreseeable to him. so, if the district court finds duct. id. at 724.4 the other was participating in the scheme and receiving and gianina simon, for the seventh circuit to prove that the defendant furthered the conspiracy prove he had reached an agreement to sell powder mr. [ianc]" when directly asked whether he conceded f.3d 525, 527 (7th cir. 2008). however, the government 358 (7th cir. 2009) (concluding that the defendant waived the government seems to equate awareness with crimi- considered the cocaine sales to be relevant conduct, we actions that he personally took part in and also [for] . . . the considered whether the codefendant's possession of states v. bustamante, 493 f.3d 879, 887-88 (7th cir. 2007) and added six levels based on the number of victims, circle of dealers). u.s.s.g. 1b1.3 cmt. n.2). the defendants seize upon unclear just what conduct is encompassed by the last and simon admitted to participating in a scheme to $174,000 from at least 90 victims of the scheme. (the ernment did not argue for the plain error standard, it to several counts of wire fraud and two counts of receipt embraced the entire fraud scheme. and it is unclear the co-schemer presented himself or herself, using the "ianc," based on the context, salem's sentencing memoran- ment's version"), which was attached to the defendants' cir. 1995) (remanding where the record supported the 16 nos. 08-2378, 08-3226 & 08-3238 money from the victims with no intent of ever giving provided "common false addresses and phone number[s] as the "seller," "seller's agent," or "ebay agent" of the the entire fraud scheme or some subset of that scheme. ability for simon's and matula's conduct, but it is agreement provided several examples involving salem, review for plain error. see united states v. garrett, 528 raimondoray cerna in approximately november 2003 promote" language when stating the proposition that "a (7th cir. 1999); u.s.s.g. 1b1.3 cmt. n.2 ("in order to cerna's and ianc's acts and the losses they caused. this dant's prior drug transactions constituted relevant con- id. (quotation omitted). we review the district court's argued november 3, 2009--decided march 9, 2010 victims of approximately $6 million. the superseding noring its other requirements. we agreed, finding and others in the united states and abroad knowingly the foreign co-schemers posed as sellers in the united of the jointly undertaken criminal activity.' " soto-piedra, decision to make such a concession appears to have been activity. "even if the defendant was perfectly aware of instead, his counsel specifically stated that salem was and ianc because salem conceded in the district court criminal activity was reasonably foreseeable to a cocaine intending that it be converted into crack. id. at bogdan ganescu and gianina simon district court still must make the necessary preliminary the loss amount and number of victims was taken from3 scheme, he was in frequent contact with co-schemers, the defendants contend that the district court erred in "for simon's conduct, emanuel matula's conduct and ordered him to pay $229,000 in restitution. after con- its relevant conduct findings. they argue that under expressly adopted the factual findings in the psr. facts that a group of co-schemers participated in the scheme of codefendant cristian bentan. the district court did not schemers in romania. each admitted an awareness that activity and reasonably foreseeable to the defendant scheme, specifically individuals such as mr. cerna, the criminal activity the defendant agreed to jointly tims' funds. in fox, for example, two codefendants were convicted codefendants: ianc, salem, and an individual identified 548 f.3d at 532; thomas, 199 f.3d at 953; u.s.s.g. imposition of the particular sentence . . . ." 18 u.s.c. nos. 08-2378, 08-3226 & 08-3238 25 establish the scope of the jointly undertaken criminal make a two-part determination of whether the conduct schemers with whom they were most closely associated, alexandru, panaitescu, lucan, dumitru, and normally review for plain error, but because the gov- ongoing communication between the persons who man- accordingly, on remand, the district court must first $1 million but less than $2.5 million. moreover, even if the court had adopted the findings furthermore, salem admitted in his plea agreement an item, he or she was instructed to send the funds relevant conduct findings and salem's sentence shall schemers that occurred during the time period in which cocaine, to be provided to an unknown customer with united states court of appeals nos. 08-2378, 08-3226 & 08-3238 17 coconspirator's conduct for such conduct to be within salem and thus attributable to him were sufficient of the loss foreseeable to ganescu and simon would be error standard of review demands more of sentencing another example for various occasions in 2005 involving activity. in soto-piedra, the defendant objected to the was in furtherance of a jointly undertaken criminal the acts of fechete, constantin, moloman, hann, court's factual findings would still be deficient on a key nal accountability. knowledge is not sufficient to should "explicitly state and support" its finding that further findings regarding the amount of the loss and the the jointly undertaken criminal activity, the psr must ment stated that salem also shared with his co-schemers defendants-appellants. also for the acts of others under 1b1.3(a)(1)(b). different shared rides to currency exchanges when receiving vic- courts in terms of factual findings. see wilson, 502 f.3d though the psrs in this case contain a wealth of infor- number of victims under u.s.s.g. 2b1.1(b)(1) and (2). activity undertaken by each of these defendants. as with bledea and ladislau as well. conduct where she chose not to object to the district court application for permanent united states residency. also ganescu admitted in his plea declaration that between involved in the scheme was foreseeable to ganescu and adequate relevant conduct analysis so as to allow for regarding the amount of the loss and the number of mately january 2006. salem admitted that as part of the reasons" a few days after he imposed the sentences. whether the court's reference to "the scheme" meant to obtaining money by means of materially false and that the court did not clearly err in finding that the defen- v. acosta, 85 f.3d 275, 279-80 (7th cir. 1996). in acosta, a finding that salem agreed to a joint undertaking that the breadth of the scheme, if he was not part of all of it, funds, 18 u.s.c. 2315. in their plea declarations, ganescu 50 but less than 250 victims. in his objections to psr activity); united states v. studley, 47 f.3d 569, 576 (2d mately september 2004 and august 2005, she received salem, ganescu, and simon participated in the scheme. also be in furtherance of jointly undertaken criminal review, it is inadequate when reviewed for clear error. bility. had he disputed his accountability for cerna's clear error where court failed to make independent rele- 3-9-10 involving salem and fechete, mihai panaitescu, judgment. united states v. burton, 543 f.3d 950, 953 (7th cir. tencing hearing was whether the conduct of other the scheme. with the laundry list of names of co-schemers, united states, principally in romania (the "foreign co- 643, 653 (7th cir. 2009). 2 nos. 08-2378, 08-3226 & 08-3238 version and the defendants' psrs, which contained great a criminal scheme " `undertaken by the defendant in western union agents. cause of the known conduct or reasonably foresee- and part of the same course of conduct as his offense of course of several years and resulted in total losses to finding that these co-schemers' acts were reasonably therefore, if the court finds that the acts of these co- to rely on plain error review. see united states v. murphy, are accountable for the conduct of certain of their co- $5.3 million. salem also admitted in his plea agreement the government argues that the district court's findings investigation of the scheme demonstrated ganescu's activity. fox, 548 f.3d at 531-32; thomas, 199 f.3d at 953. been regularly dealing cocaine and was part of an ongoing sidering the 3553(a) factors, including simon's overall nos. 08-2378, 08-3226 & 08-3238 and ganescu. the court found by a preponderance of the any challenge to inclusion of certain acts as relevant cir. 2008); united states v. thomas, 199 f.3d 950, 953 the court found that under u.s.s.g. 2b1.1(a)(1) salem's case of a jointly undertaken criminal activity, relevant network of individuals in the united states, including than $400,000, and that the offense involved more than no plain error in court's failure to make specific findings the district court did adopt the factual findings in the the psrs at the sentencings. thus, the judge's oral ex- that salem was accepting responsibility not only for on september 4, 2007, ganescu and simon pled guilty, for the northern district of illinois, eastern division. the foreseeability requirement of relevant conduct, ig- that a defendant assisted or agreed to promote a 18 nos. 08-2378, 08-3226 & 08-3238 the authorities soto-piedra cited for the "assist or agree accepting responsibility for their actions. and salem's court considered and adopted the facts recited in the under u.s.s.g. 1b1.3(a)(1)(b) and, if necessary, for 26 nos. 08-2378, 08-3226 & 08-3238 explaining its reasoning for the sentence imposed, pro- for the foregoing reasons, we remand salem's, the district court identified the crux of the matter as caused by the other participants beyond cerna and ianc." 551 f.3d 645, 646 (7th cir. 2008); u.s.s.g. 1b1.3(a). in the although the adoption of a psr's findings in this the entire internet fraud scheme was wide-ranging, with asserts that in this case we review the district court's accordingly, a $9800 reduction in the loss and subtraction of simon's cell phones and those of constantin, ianc, and to avoid and which were favorable," "used common error. id. we draw a distinction between waiver and defendant's] contemplated undertaking." id. at 533. were tricked into believing that they were purchasing first determine the scope of the criminal activity the and ianc" and argued that the government failed to whether the actions of co-schemers ianc, constantin, 1b1.3(a)(1)(b). "[a]n absence of findings on key promote are generally not within the scope of that defen- ity. like salem, ganescu and simon do not contest the soto-piedra, we said that the "[a]ctions of coconspirators court adopted the facts recited in the presentence report 97 months, at the bottom of the range, and ordered him proceeds from a western union agent. this required defendant agreed to jointly undertake. the district court participated in "the scheme" and that their conduct was mately $9800 of the total loss and four victims to the conduct find that bentan's conduct was reasonably foreseeable to foreseeable to the defendant in connection with, that salem, ianc, ladislau, simon, and ganescu. the agree- 548 f.3d at 532; see also dean, 574 f.3d at 846 (vacating mining the scope of a jointly undertaken criminal activity. conduct is determined on the basis of " `all reasonably way of saying that the mere foreseeability of another's cerna, fechete, ianc, constantin, moloman, hann, victims under u.s.s.g. 2b1.1(b)(1) and (2). court also ordered her to pay $62,000 in restitution. and remanding sentence for a specific finding as to the wire transfers of fraud proceeds of approximately "is not necessarily the same as the scope of the entire should be held accountable not only for their own acts but dant to the foreign co-schemers. the victim provided making independent relevant conduct finding and about $239,000 and that together ganescu and simon of a crack cocaine conspiracy. one challenged the were in furtherance of that jointly undertaken criminal that the district court considered the government's sions that were both made in furtherance of the con- union, representing himself or herself as the authorized nos. 08-2378, 08-3226 & 08-3238 19 that a particular defendant does not assist or agree to the district court's decision to hold him accountable for connecting uncharged drug transactions with offense bledea. the government's version stated that simon this case is quite different from the cases cited by the altering the standard for the scope of jointly undertaken schemers"), posed as sellers of items and lured victims able conduct of these other persons to [him], that guideline computations and the sentencing factors, but whom the victims should send their money and that relevant conduct under u.s.s.g. 1b1.3(a)(1)(b). he item offered for sale. once someone agreed to purchase codefendants was reasonably foreseeable to ganescu and review the district court's relevant conduct determina- payee for the wire transfer of funds and received the funds. of others was both in furtherance of that joint criminal here, the district court considered whether the defendants in addressing a jointly undertaken criminal activity in the foreign co-schemers and the fourteen defendants in nos. 08-2378, 08-3226 & 08-3238 7 in order to reduce the risk of apprehension by law sheet detailing western union transactions, the transac- government "waived waiver" by asserting the plain conduct of others was in furtherance of, and reasonably of conviction to treat the sales as relevant conduct under a superseding indictment charged that aida salem, and that their conduct was reasonably foreseeable to stand, provided appropriate findings are made with balance of the proceeds to romania. salem, ganescu, and simon agreed to jointly undertake. role like that of the defendants. the district court did not with and as directed by co-defendant managers cerna ganescu's and simon's jointly undertaken criminal activ- may 22, 2008, the government conceded a total loss base offense level was seven and added sixteen levels the scope of jointly undertaken activity under u.s.s.g. implicit relevant conduct finding under clear error 1991). the scope of the defendant's jointly undertaken criminal however, before sentencing the defendant, the court with respect to salem, the court must determine whether that on some occasions, he and other co-schemers strategic reason. id. at 542. this, we said, was "precisely the adoption of a psr's findings could constitute 2008); united states v. duarte, 950 f.2d 1255, 1263 (7th cir. quantity of drugs). findings at sentencing that it clearly believed that the accountable for the conduct of others "if that conduct addressing whether their codefendants' conduct was to promote" language bolster the conclusion that the compare united states v. panaigua-verdugo, 537 f.3d 722, ianc. 28 nos. 08-2378, 08-3226 & 08-3238 1b1.3(a)(1)(b). they claim that the evidence failed to nos. 08-2378, 08-3226 & 08-3238 27 3553(c)'s "open court" requirement with a statement be sentenced for drugs trafficked by the whole con- dum, and subsequent comments by salem's counsel at the foreign co-schemers believed that victims in the united presumably based in part on a limitation of jointly under- to which he had agreed." thomas, 199 f.3d at 953. it does we added: fail to object to the psr's drug quantity calculation, but the scheme and traceable to ganescu, simon, and the co- of their co-schemers and that the enhancements based dant's jointly undertaken activity." 525 f.3d at 533 (citing vant conduct finding and relied entirely on presentence ianc, constantin, cerna, marian alexandru, fechete, participate in the fraud scheme. given the standard of but also on relevant conduct. united states v. alldredge, similarly, in wilson the district court failed to make alexandru, panaitescu, constantin lucan, dumitru, and cert. denied, 129 s. ct. 261 (2008), the evidence must show simon's base offense level under u.s.s.g. 2b1.1(b)(1)(i) bogdan ganescu, gianina simon, eleven codefendants, and simon's close association with several codefendants, 6 nos. 08-2378, 08-3226 & 08-3238 and mihail hann, transmitted funds owed to the foreign such findings at a sentencing hearing can be sufficient. his own actions but also for "the reasonably foreseeable indictment alleged that the scheme involved not only 500 victims of the scheme.


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