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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2003 Decided November 14, 2003
No. 02-3089
UNITED STATES OF AMERICA,
APPELLEE
v.
LAWRENCE SEILER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cr0054–02)
Joseph Murtha argued the cause and filed the brief for
appellant.
Suzanne Grealy Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard Jr., U.S. Attorney, and John R. Fisher, Roy W.
McLeese III, and Steven J. Durham, Assistant U.S. Attor-
neys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: HENDERSON, TATEL, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Having pleaded guilty to conspiracy
and wire fraud in connection with a scheme to bilk a govern-
ment agency, appellant challenges his sentence, arguing that
the actions of co-conspirators for which the district court held
him responsible were neither reasonably foreseeable nor in
furtherance of the conspiracy that he agreed to join. Be-
cause we find no clear error, we affirm.
I.
Appellant Lawrence Seiler owns Eastern Tech Manufactur-
ing Corporation, an electronics assembly business. In 1996,
he and William Powell, a buyer for Boeing Information
Services, devised a scheme to defraud the National Aeronau-
tics and Space Administration. Boeing was a NASA contrac-
tor, and Powell had responsibility for buying goods and
services from subcontractors that Boeing would then sell to
NASA.
Seiler’s and Powell’s scheme worked as follows: Powell
solicited bids from various subcontractors for goods that
NASA needed. Once Powell identified the lowest bid, he told
Seiler to have Eastern Tech buy the goods from that bidder
at the price offered. Eastern Tech then offered to sell the
goods to Boeing at a price above what Eastern Tech had paid.
Powell accepted Eastern Tech’s offer on Boeing’s behalf after
falsely reporting that it was the lowest bid. Boeing then paid
Eastern Tech, and Seiler sent a check for half the profits
(half the difference between the actual lowest bid and East-
ern Tech’s bid) to Powell. According to the government,
Seiler and Powell cheated NASA of $67,698.06.
At the same time that he ran this scheme with Seiler,
Powell operated a similar scheme with one Timothy
McLatchy, who owned Inroads Computer Services. Like
Seiler, McLatchy had his company sell goods to Boeing at
inflated prices and then split the profits with Powell. On four
occasions, Seiler laundered kickback checks that McLatchy
wrote to Powell by depositing them into Eastern Tech’s bank
3
account and then writing checks to Powell. Each time, Seiler
charged Powell $100. The government calculated that the
Powell-McLatchy scheme cost NASA $65,950.39.
A third group of fraudulent transactions involved Powell’s
own fictitious company, Eastern Manufacturing (EM). In
these transactions, Powell had EM submit inflated bids in-
stead of using Seiler’s or McLatchy’s company. The govern-
ment charged that Seiler was at least minimally involved in
these transactions as well, and calculated that the losses from
them totaled $31,060.19.
After a grand jury indicted Seiler for his role in these
schemes, he pleaded guilty to one count each of conspiracy
and wire fraud. At Seiler’s sentencing hearing, the district
court, after listening to testimony from both the government’s
case agent and Seiler, found that Powell’s and McLatchy’s
actions in carrying out all three groups of transactions were
foreseeable to Seiler and in furtherance of the conspiracy that
he agreed to join. The court therefore concluded that all
three groups were ‘‘relevant conduct’’ within the meaning of
U.S. Sentencing Guidelines section 1B1.3. Noting repeatedly
that it disbelieved Seiler’s testimony, the court accepted the
government’s calculation of the total losses as $164,708.64 and
then used that figure to find that the proper sentencing
range, after making several adjustments, was 12 to 18
months. The court sentenced Seiler to 366 days in prison
and ordered him to pay, as restitution, thirty percent of the
losses, or $49,412.59.
On appeal, Seiler argues that the district court erred in
finding that the second and third groups of transactions (i.e.,
those between McLatchy and Powell, and those in which
Powell used EM) were relevant conduct to be considered in
fixing his sentence. Seiler also asserts that the losses attrib-
utable to the first group of transactions—in which his own
company submitted inflated bids—total ‘‘at most’’ $33,849.03.
Appellant’s Br. at 17.
II.
We review the district court’s relevant-conduct determina-
tion and loss calculation only for clear error. See United
4
States v. Pinnick, 47 F.3d 434, 437 (D.C. Cir. 1995) (relevant
conduct); United States v. Leonzo, 50 F.3d 1086, 1088 (D.C.
Cir. 1995) (loss calculation). We thus will not upset the
district court’s findings unless we are ‘‘left with the definite
and firm conviction that a mistake has been committed.’’
Boca Investerings P’ship v. United States, 314 F.3d 625, 630
(D.C. Cir. 2003) (quoting United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)) (internal quotation
marks omitted).
Relevant Conduct
In determining the proper sentence in a criminal case, a
district court takes into account all relevant conduct. U.S.
Sentencing Guidelines section 1B1.3(a)(1)(B) provides that in
conspiracy cases, relevant conduct includes ‘‘all reasonably
foreseeable acts and omissions [committed by] others in
furtherance of the jointly undertaken activityTTTT’’
Claiming that the Powell-McLatchy transactions were nei-
ther reasonably foreseeable nor in furtherance of the conspir-
acy that he agreed to join, Seiler asserts that he never met
McLatchy or knew that Powell and McLatchy were operating
their own scheme. He admits that he cashed four checks
that Inroads (McLatchy’s company) wrote to EM (Powell’s
company), but insists that this is insufficient to support the
district court’s finding that the Powell-McLatchy scheme was
relevant conduct. Seiler laundered the proceeds of several of
the Powell-McLatchy transactions, however, thereby making
the fraud harder to detect. Although Seiler asserted at his
sentencing hearing that Inroads actually intended to make
the laundered checks payable to Eastern Tech (his company)
and not EM (Powell’s company), and that Inroads had simply
committed an error when drawing the checks, he admitted
that Inroads owed Eastern Tech nothing when it wrote the
four checks. Seiler also claimed—inconsistently—that he
simply cashed the checks as a favor to Powell, who ‘‘explained
to me that he was earning that money consulting at [Inroads]
and that [Inroads] did not want to put him on the books
because of the 1099 issue.’’ Setting aside the fact that (as the
5
government points out) this latter explanation might expose
Seiler to prosecution for helping Powell evade taxes, we think
that Seiler’s cashing of the checks and his inconsistent expla-
nations for doing so provide ample basis for the district
court’s finding that the Powell-McLatchy transactions fell
within the scope of the conspiracy in which Seiler agreed to
participate, rendering them relevant conduct under section
1B1.3.
Seiler also argues that the district court erred in finding
that the transactions in which Powell had EM submit fraudu-
lent bids constituted conduct relevant to his (Seiler’s) sen-
tence. In its brief, the government argues that we need not
address this issue because even if the EM transactions were
not attributed to Seiler, his Guidelines sentencing range
would not change. At oral argument, however, the govern-
ment conceded that removing those transactions from consid-
eration would lower the restitution amount.
Seiler contends that he withdrew from the conspiracy in
the summer of 1997 by ceasing to do business with Powell.
This withdrawal, Seiler says, precludes a finding that the EM
transactions were relevant conduct. As the government
notes, however, Powell not only created EM in the summer of
1996, a year before Seiler’s purported withdrawal, but also
conducted transactions through EM at the same time that he
ran his scheme with Seiler’s company. Thus, even if Seiler
withdrew when he says he did, that would not by itself take
the EM transactions outside the scope of relevant conduct.
Moreover, Seiler acknowledges one occasion when Powell
sent him an EM check after the summer of 1997. At his
sentencing hearing, Seiler initially testified that he did not
know whether that check represented the proceeds of the
conspiracy—as the government contended—but then claimed
that it represented the repayment of a loan he had made to
Powell. The government also introduced a check that Powell
had sent to Seiler several months earlier. Seiler testified
that this too was a loan repayment. The district court,
however, after giving the matter ‘‘close attention,’’ did not
credit this testimony. It instead accepted the government’s
6
theory that Seiler helped Powell conduct the EM transactions
and that the payments from Powell and EM represented the
fruits of those transactions.
Although the evidence tying Seiler to the EM transactions
is weaker than that which connects him to the Powell-
McLatchy transactions (as the district court recognized), we
see no basis for concluding that the court clearly erred by
attributing the EM transactions to Seiler, particularly given
that the court’s findings rested largely on its evaluation of
witness credibility. See, e.g., United States v. Hart, 324 F.3d
740, 747 (D.C. Cir. 2003) (‘‘[T]he district court’s credibility
determinations are entitled to the greatest deference from
this court on appeal.’’). In any event, the government’s
theory—that Seiler was not only aware of the EM transac-
tions, but also paid for helping Powell carry them out—was
plausible. Indeed, once the district court deemed Seiler’s
testimony incredible, the government’s theory represented
the best explanation of the facts. We thus lack the requisite
‘‘definite and firm conviction’’ that the district court made a
mistake in accepting that theory.
Loss Calculation
Seiler does not challenge the district court’s decision to
attribute the losses stemming from Eastern Tech’s inflated
bids to him. Instead, he argues that those losses total no
more than $33,849.03—exactly half the amount the govern-
ment contends was lost. The government arrived at its
figure by totaling the money that Seiler had paid to Powell
and then subtracting various amounts, such as the four
checks that Seiler laundered. That yielded a total of
$33,849.03 in fraud-related payments from Seiler to Powell.
Then, because Seiler and Powell apparently split the profits
of the scheme evenly, the government doubled that figure to
reach its total loss amount.
It is this doubling to which Seiler seems to object. We say
seems because he says only that the proper amount is ‘‘at
most’’ $33,849.03. See Appellant’s Br. at 17. As the govern-
ment points out, not only does Seiler provide no elaboration,
7
but he argued before the district court for a higher total loss
amount—specifically $52,216.56. In any event, we detect no
error, much less clear error. The government introduced a
fax that Powell sent to Seiler, in which Powell discussed the
details of one fraudulent transaction. In the fax, Powell
wrote that ‘‘as you can see there is $3,000.00 profit (1500) ea.’’
This strikes us as enough evidence to support the district
court’s acceptance of the government’s doubling of the
amount that Seiler paid to Powell, especially since Seiler
offers nothing to refute it.
Seiler’s sentence is affirmed.
So ordered.