United States Court of Appeals
For the First Circuit
No. 01-2224
UNITED STATES OF AMERICA,
Appellee,
v.
CESAR ACOSTA, a/k/a NELSON BARRERA,
a/k/a PEDRO LOZADA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch Circuit Judge,
Campbell and Bownes, Senior Circuit Judges.
Jonathan R. Saxe, Assistant Federal Public Defender, with
whom Owen S. Walker, Federal Public Defender, was on brief for
appellant.
Jean B. Weld, Assistant U.S. Attorney, with whom Thomas P.
Colantuono, U.S. Attorney, was on brief for appellee.
____________________
August 30, 2002
____________________
BOWNES, Senior Circuit Judge. Defendant-appellant
Cesar Acosta pled guilty to a one-count indictment charging him
with use and attempted use of one or more unauthorized access
devices in violation of 18 U.S.C. §§ 1029(a)(2) and (b)(1). In
determining the offense level, the district court calculated
total loss in excess of $20,000, sentencing Acosta to ten months
imprisonment and three years of supervised release. In
calculating restitution, the court considered suppressed evidence
that it had excluded from the loss calculation. Acosta appeals
both the loss amount, with its resulting offense level, and
restitution award. We AFFIRM.
I. BACKGROUND
A. Facts
On October 2, 2000, Acosta used an American Express
card in the name of Nelson Barrera to purchase three $250 gift
cards from a J.C. Penney store in Nashua, New Hampshire. Store
security officer Mark Kidd witnessed the purchase, followed
Acosta into the parking lot, and observed him enter the Sears
store. Acosta’s purchase aroused Kidd’s suspicions because the
store had recently experienced losses arising from multiple gift
card purchases through counterfeit credit cards. At the time he
observed Acosta, Kidd was unaware that the defendant was using a
fraudulent card. Sears security videotaped Acosta as his card
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was denied when he attempted to purchase similar gift
certificates. Kidd then observed Acosta enter a car, which, it
developed, was registered to Acosta’s girlfriend, Delva Castanos.
Security Officer Kidd contacted American Express and learned that
Nelson Barrera was not a valid American Express account holder.
On October 14, 2000, Acosta purchased two more $250
gift certificates from a Target store in Nashua, New Hampshire,
using a MasterCard also in the name of Nelson Barrera. Eleven
days later, investigators from the Nashua Police Department and
Secret Service went to the apartment of Acosta’s girlfriend Delva
Castanos. Castanos identified the man in the Sears videotape as
Acosta and consented to a search of her apartment and vehicle.
About the same time, Officer Karen Becotte of the
Nashua Police Department stopped Acosta as he was driving
Castanos’s car in the parking garage of the building in which she
had an apartment.1 Acosta showed her a New Hampshire driver’s
license in the name of Pedro Lozada. Becotte falsely informed
Acosta that his vehicle was suspected of involvement in a hit-
and-run accident, and Acosta accompanied her to the police
station in Castanos’s car.
1
The record suggests, but is not entirely clear, that Acosta
was driving out of the garage.
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In an interview at the police station, Acosta admitted
to the use of a number of aliases and stolen credit cards. He
said he had obtained the cards from an individual he knew as "Fat
John." He also indicated that Castanos's apartment contained
evidence including items purchased with these cards, receipts,
and additional fraudulent credit cards. Acosta accompanied
investigators to the apartment, showed them the evidence, and
provided them with seventeen credit cards in several different
names.
Prior to Acosta’s interrogation, Officer Kidd also
learned of fraudulent credit card charges at a J.C. Penney store
in Concord, New Hampshire, on February 21 and 22, 2000. These
charges, on a card issued to Rafael Vila, consisted of four $250
gift card purchases and a $124.98 merchandise purchase, totaling
$1,124.98. The government linked Acosta to these transactions
through his use of an American Express card to fraudulently
purchase gift cards at a J.C. Penney in Salem, New Hampshire, on
January 10, 2000. Later, an individual using the name Joseph
Trimpin redeemed the J.C. Penney gift cards purchased by both
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Vila and Acosta at a store in Miami, Florida.2 Through Trimpin’s
actions, the government linked Acosta to the Vila transactions.
B. Procedural History
On November 9, 2000, Acosta was indicted on one count
of possession of, with intent to defraud, fifteen or more
counterfeit or unauthorized access devices (credit cards), in
violation of 18 U.S.C. § 1029(a)(3). Acosta filed a motion to
suppress, arguing that he had been illegally arrested, questioned
absent Miranda warnings, and questioned after he had requested an
attorney. The district court granted the motion, suppressing all
of Acosta’s statements and all evidence derived therefrom,
including a number of credit cards and receipts found at
Castanos’s apartment. After this, the district court granted the
government’s motion to dismiss the indictment. On March 15,
2001, the government reindicted Acosta on one count of
fraudulently using and attempting to "use one or more
unauthorized access devices . . . including, but not limited to,
American Express Card # 371388014444020, to fraudulently obtain
property and other items of [sic] with an aggregate value of more
than one thousand dollars" between January 1, 2000 and
2
Investigators also learned of various other unauthorized
MasterCard and American Express charges that Acosta does not
dispute on appeal.
-5-
October 25, 2000, in violation of 18 U.S.C. §§ 1029(a)(2) and
(b)(1). Acosta filed another motion to suppress, which the
district court dismissed as moot based on the government’s
representations that it would not rely on any evidence covered by
the earlier suppression order to prove the charge in the second
indictment. The district court also dismissed as moot Acosta’s
motion to dismiss or, in the alternative, for a bill of
particulars because "the government has represented that the
indictment’s reference to 'other access devices' refers to those
credit cards identified in its Objection to Defendant’s Motion to
Dismiss . . . and that its evidence will be limited to the access
devices identified in the indictment and in its objection." The
government represented in this motion that "[n]one of the
information [in the second indictment] is subject to the
suppression decision" and that it would not attempt to use the
suppressed evidence without the court’s permission.
Acosta pled guilty to this new indictment and signed a
binding plea agreement stipulating that the amount of loss from
his charged conduct did not exceed $40,000.
The government also filed a sentencing memorandum with
attachments in support of its sentencing positions. This report
incorporated the results of a Secret Service inquiry into the use
of American Express card number 371388014444020, which found that
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the card had been legitimately issued to Olgamarina De Tunez of
Miami, Florida. The memo report contained a list of seventy-six
fraudulent charges on this credit card. Three entries reflected
the October 2 transactions that Officer Kidd had witnessed at the
J.C. Penney store in Concord, New Hampshire. Other charges
included transactions at Henri Bendel, a business in New York
City, on September 7, 2000; K-Mart in North Miami, Florida, and
Sam Goody in Salem, New Hampshire, all on September 14, 2000;
Sears Roebuck in Manchester, New Hampshire, on September 15,
2000; Scoop East in New York City and Lenscrafters and Sears
Roebuck in Nashua, New Hampshire, all on September 24, 2000; as
well as myriad other transactions at New Hampshire and
Massachusetts businesses. The fraudulent charges to this
account, an account known to investigators prior to their
obtaining the suppressed evidence on October 25, 2000, totaled
$17,243.69.
At sentencing, the district court ruled that the
suppressed evidence could not be used to calculate offense level
because the police had acted "egregious[ly]" in obtaining it.
The court attributed the purchases made by Vila to Acosta and
included them to calculate total loss. The court included the
$1,124.98 in purchases by Vila, $17,243.69 in American Express
Card purchases, $1,498.99 from Acosta’s fraudulent use of a
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MasterCard, and $259.96 from Acosta’s purchases at Sears to
calculate total loss for Acosta’s guideline range. The resulting
total, $20,127.62, yielded a total offense level of ten with a
guideline sentencing range (GSR) of six to twelve months.
Applying a criminal history category of I, the court sentenced
Acosta to ten months imprisonment and three years of supervised
release. It also ordered restitution of $37,756.30, an amount
that included the suppressed transactions. Without any defense
objection as to accuracy, the court adopted this restitution
figure from the government’s August 23, 2001, letter to the
Probation Office, which referred to affidavits of loss provided
by the credit card companies.
II. DISCUSSION
Acosta appeals the district court’s calculations of
loss, along with its resulting offense level, and restitution.
On loss, he contests both the $17,243.69 American Express figure,
arguing it should be $750.00, and the $1,124.98 figure, claiming
no part of it should be attributed to him. He contends that his
sentence should be based on a loss figure of less than $5,000,
resulting in an offense level of six, and a GSR of zero to six
months. He also contests the restitution amount, arguing that
the district court should not have considered the suppressed
transactions. We reject both arguments.
-8-
A. Loss Calculation
Acosta argues that the district court erred in
calculating his offense level by including unsuppressed credit
card charges that the government did not prove Acosta personally
made. We review the district court’s findings of fact for clear
error. United States v. Brewster, 1 F.3d 51, 54 (1st Cir. 1993).
This Court grants great deference to a district court’s
calculation of the amount of loss for sentencing purposes:
Calculating the amount of loss for purposes
of the sentencing guidelines is more an art
than a science. . . . [A] party dissatisfied
with the sentencing court's quantification of
the amount of loss in a particular case must
go a long way to demonstrate that the finding
is clearly erroneous.
United States v. Rostoff, 53 F.3d 398, 407 (1st Cir. 1995)
(citations omitted). The government must prove the amount of
loss under U.S.S.G. § 2F1.1 by a preponderance of the evidence.
United States v. Vaknin, 112 F.3d 579, 582-83 (1st Cir. 1997);
United States v. Keifer, 198 F.3d 798, 800 (10th Cir. 1999). The
sentencing must be based on information bearing "sufficient
indicia of reliability to support its probable accuracy."
U.S.S.G. § 6A1.3(a), p.s. (2001).
Acosta argues that the district court and government
were merely speculating that he was the only person with access
to the unauthorized American Express card number 371388014444020.
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He points out that because the card was not a stolen card, but
rather a card manufactured fraudulently using an illegally-
obtained card number, the likelihood was very low that a person
would go to the trouble of fraudulently obtaining a credit card
number only to produce just one fake card and then take that card
from Florida to New England to sell it. Further, Acosta points
out that when faced with evidence that the same credit card
number was used on the same day at a K-Mart in North Miami,
Florida and at Sam Goody in Salem, New Hampshire, the government
explained the potential problem by saying that the Miami use was
erroneously classified as fraudulent and was in fact a legitimate
transaction.3 Acosta argues that it is possible that other uses
were similarly classified as fraudulent by mistake.
Acosta also highlights the two instances where a
fraudulent card was used in New York and New Hampshire on the
same date to further suggest that another person was using the
same account number, and points out that no evidence was offered
to refute this possibility. While conceding that it was
theoretically possible that the New York purchases were made by
telephone or that he traveled to both states on the same day,
Acosta argues that these scenarios are highly unlikely and the
3
The Miami charge was ultimately excluded from the loss
calculation.
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government’s evidence linking him to these purchases is
insufficient.
Accordingly, Acosta argues, he should be held
responsible only for the three of the seventy-six uses of
American Express Card number 371388014444020 that occurred on
October 2, 2000, at J.C. Penney in Nashua, New Hampshire. In
contrast, the government argued, and the court found, that all
uses of this card, totaling $17,243.69, were attributable to
Acosta.
At the sentencing hearing, the district court judge
concluded that the government had met its burden under the
preponderance of the evidence standard:
I find that the government has established by
a preponderance of the evidence that the
$17,243.69 of attributable losses is correct.
I’m satisfied that there’s no evidence that
there were multiple cards with the same
number. There’s certainly some questionable
charges here, but there are myriad
explanations as to how that could
happen. . . . [C]ertainly it’s not
inconceivable at all, in fact it’s very
plausible, that the defendant could easily
have made phone calls to these New York
Stores and ordered whatever was ordered. You
don’t have to be personally there. It could
be phone calls. It could be whatever. He
had the card in his possession. He was in
the area. There’s no evidence that convinces
me or satisfies me that there’s a real
plausibility of another duplicate card out
there other than the original card, so I
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think the government’s met its burden of
proof with respect to that number.
Excluding the suppressed evidence to calculate loss for
sentencing purposes, the court eliminated $2,831.31 and adopted
the $17,243.69 figure as charges to American Express card number
371388014444020. This excluded the Miami, Florida, charge.
Indeed, most of the charges attributed to Acosta
occurred in a tight geographical area - New Hampshire and
Massachusetts - and many were gift cards. The court concluded
that the preponderance of the evidence demonstrated Acosta likely
made the purchases. Further, of the seventy-six transactions
charged to American Express card number 371388014444020, only
three were made in New York, which is outside the tight
geographical area. The district court concluded that Acosta
could have made these charges himself, likely over the phone or
in person.
Considering the argument that the purchases made on the
card issued to Vila should not be attributed to Acosta, the
district court recognized that the question was a "close" one but
determined that the government had met its burden, establishing
"by a preponderance of the evidence . . . that [the] charge made
by Mr. Vila, independently [of the] suppressed evidence, was made
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by Mr. Acosta."4 The district court included this amount in the
calculation of loss.
Given the high level of deference we accord to a trial
court’s calculation of loss for sentencing purposes and the
judge’s reasoned explanations on both figures, we see no clear
error in the district court’s loss calculation.
B. Restitution
Acosta argues that the district court erred in using
the suppressed evidence to calculate restitution. We review this
claim of legal error de novo. United States v. Collins, 209 F.3d
1, 2 (1st Cir. 1999); United States v. Neal, 36 F.3d 1190, 1199
(1st Cir. 1994); United States v. Savoie, 985 F.2d 612, 618 (1st
Cir. 1993).
4
The district court explained:
I think it would certainly be demonstrable that Mr. Kidd
concluded, and certainly the Court would conclude, that
once it’s established that Barerra [sic] is Acosta and
Barrera has purchased gift certificates with a fraudulent
card, and the same modus operandi was used virtually
contemporaneously and the gift certificates were sent for
redemption to the same person at the same place in the
same state, virtually contemporaneously, for cashing in,
it’s certainly reasonable to draw the inference then that
the persons are the same people operating under different
names; that is Mr. Acosta.
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1. Use of Suppressed Evidence
This Circuit has yet to decide whether a court may use
evidence suppressed under the Fourth Amendment in the context of
Sentencing Guidelines proceedings. United States v. Raposa, 84
F.3d 502, 503 (1st Cir. 1996) (addressing but declining to decide
the issue). We have noted, however, that all the courts that
have addressed this issue have held that "there is no blanket
prohibition on the consideration of illegally seized evidence for
the purposes of making the findings required under the
Guidelines."5 Id. at 504. Indeed, ten other circuits have ruled
that in most circumstances, the Fourth Amendment exclusionary
rule does not bar the introduction of suppressed evidence during
sentencing proceedings.6 United States v. Ryan, 236 F.3d 1268,
1271-72 (10th Cir. 2001) (citing United States v. Brimah, 214
Nevertheless, this rule has not been met with universal
5
acclaim. Raposa, 84 F.3d at 505 (citing United States v. Jewel,
947 F.2d 224, 238-40 (7th Cir. 1991) (Easterbrook, J., concurring);
United States v. McCrory, 930 F.2d 63, 70-72 (D.C. Cir. 1991);
Wayne R. LaFave, 1 Search and Seizure § 1.6, at 40-41 (2d ed. Supp.
1995)).
6
The only other circuit that has not yet addressed this issue
after the passage of the Sentencing Guidelines reached the same
conclusion as the other Circuits in a pre-Guideline case. United
States v. Lee, 540 F.2d 1205, 1211 (4th Cir. 1976) (noting that
deterrent effect of extending the exclusionary rule to sentencing
"would be so minimal as to be insignificant").
-14-
F.3d 854, 857-59 & n.4 (7th Cir. 2000) (holding exclusionary rule
at sentencing should not bar introduction of evidence seized in
violation of Fourth Amendment, but leaving open question of
whether the rule applies when police intentionally act illegally
to enhance defendant's sentence); United States v.
Tauil-Hernandez, 88 F.3d 576, 581 (8th Cir. 1996) (holding the
exclusionary rule does not apply at sentencing); United States v.
Kim, 25 F.3d 1426, 1435 & n.8 (9th Cir. 1994) (admitting evidence
from illegal search and seizure at sentencing, but leaving open
the question of whether the rule applies when police
intentionally act illegally to enhance defendant's sentence or
had an "undue incentive" to so act); United States v.
Montoya-Ortiz, 7 F.3d 1171, 1181 & n.10 (5th Cir. 1993) (holding
exclusionary rule is generally inapplicable to sentencing
proceedings, but suggesting that illegally seized evidence could
be excluded if it was seized for the sole purpose of enhancing
defendant's sentence); United States v. Jenkins, 4 F.3d 1338,
1344-45 (6th Cir. 1993) (permitting the use of illegally seized
evidence after finding no indication that evidence was obtained
to enhance defendant's sentence); United States v. Tejada, 956
F.2d 1256, 1263 (2d Cir. 1992) ("Absent a showing that officers
obtained evidence expressly to enhance a sentence, a district
judge may not refuse to consider relevant evidence at sentencing,
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even if that evidence has been seized in violation of the Fourth
Amendment."); United States v. Lynch, 934 F.2d 1226, 1236-37 &
n.15 (11th Cir. 1991) (admitting illegally obtained evidence and
reserving question of whether suppression would be necessary if
illegal search was done with purpose of increasing defendant's
sentence); McCrory, 930 F.2d 63, 69 (D.C. Cir. 1991) (same);
United States v. Torres, 926 F.2d 321, 325 (3d Cir. 1991)
(same)). Nine of these circuits have added or left open the
possibility that the exclusionary rule will still apply if there
is an indication that the police violated the defendant’s Fourth
Amendment rights with the intent to secure an increased sentence.
Ryan, 236 F.3d at 1272; Brimah, 214 F.3d at 858 n.4; Kim, 25 F.3d
at 1435 n.9; Montoya-Ortiz, 7 F.3d at 1181 n.10; Jenkins, 4 F.3d
at 1345; Tejada, 956 F.2d at 1263; Torres, 926 F.2d at 325;
Lynch, 934 F.2d at 1237 n.15; McCrory, 930 F.2d at 69.
These other circuits have carefully reasoned that,
inter alia, the deterrent effect of the exclusionary rule does
not outweigh the detrimental effects of excluding reliable
evidence on the court’s ability to meet its goal of proper
sentencing. E.g., Tejada, 956 F.2d at 1262 (concluding that
allowing illegally obtained evidence to be considered at
sentencing would not provide greater incentives for police to
violate the Fourth Amendment); Lynch, 934 F.2d at 1236-37. They
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have also recognized that the sentencing court needs to have the
fullest information available to fashion an appropriate remedy
and that the Sentencing Guidelines allow the sentencing court to
consider, without limitation, any information concerning the
defendant’s background, character, or conduct. E.g., McCrory,
930 F.2d at 68; 18 U.S.C. § 3661 (2000);7 see also United States
v. Robins, 978 F.2d 881, 891 (5th Cir. 1992) (noting that "[i]t
is a fundamental principle of sentencing that a district court
may conduct an inquiry broad in scope, largely unlimited either
as to the kind of information it may consider, or the source from
which such information may come" (citing United States v.
Campbell, 684 F.2d 141, 152 (D.C. Cir. 1982)).
While never having spoken directly on this issue, the
Supreme Court has recognized the exclusionary rule as
a judicially created remedy designed to
safeguard Fourth Amendment rights generally
through its deterrent effect, rather than a
personal constitutional right of the party
aggrieved. Despite its broad deterrent
7
18 U.S.C. § 3661 provides, "No limitation shall be placed on
the information concerning the background, character, and conduct
of a person convicted of an offense which a court of the United
States may receive and consider for the purpose of imposing an
appropriate sentence." The district court’s discretion is not
unlimited in scope, however. Brimah, 214 F.3d at 856 (citing
U.S.S.G. §§ 5H1.1-1.6, 5H1.10, which list factors including, inter
alia, age, education, and race, that are not relevant in sentencing
determinations).
-17-
purpose, the exclusionary rule has never been
interpreted to proscribe the use of illegally
seized evidence in all proceedings or against
all persons.
United States v. Calandra, 414 U.S. 338, 348 (1974) (weighing the
deterrent effect of the exclusionary rule on police misconduct
against the potential benefit of extending the rule to grand jury
proceedings).
It is clear that in sentencing, consideration of
evidence suppressed under the Fourth Amendment is "consistent
with the caselaw on the exclusionary rule and follows the well-
established practice of receiving evidence relevant to sentencing
from a broad spectrum of sources." Torres, 926 F.2d at 325.
Given the great weight of the precedent and following the
unanimous, reasoned approach of our sister circuits, we hold that
the exclusionary rule does not bar the use of evidence seized in
violation of a defendant’s Fourth Amendment rights in
sentencing.8 We leave open the question of whether the
exclusionary rule would bar the use of evidence when police
intentionally act in violation of the Fourth Amendment in order
8
We note that the evidence suppressed by the district court
included both credit cards and receipts seized in violation of
Acosta’s Fourth Amendment rights and statements investigators
obtained from Acosta in violation of his Fifth Amendment rights.
The dispute before us for restitution purposes concerns only the
suppressed credit card receipts.
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to increase a defendant’s sentence. Therefore, the district
court was not required to exclude the suppressed evidence in the
context of sentencing in this case, even though it chose to do so
in calculating the loss. This is not a case where the officers
acted with intent to enhance Acosta’s sentence. The district
court found no such intent and neither side disputes this
conclusion. Determining that the district court could properly
have considered the suppressed evidence in Acosta’s sentencing
proceedings, we next examine whether the restitution order was
otherwise valid.
2. Legal Requirements of a Restitution Order
The Victim and Witness Protection Act (VWPA) authorizes
a district court to order "in addition to or . . . in lieu of any
other penalty authorized by law, that the defendant make
restitution to any victim" of the offense. 18 U.S.C. § 3663(a).
The purpose behind the statute is to "insure that the wrongdoer
make good[], to the degree possible, the harm he has caused to
the victim." Vaknin, 112 F.3d at 582 (citation and internal
quotations omitted) (alteration in original). The Supreme Court
has held that this statute limits restitution awards to "the loss
caused by the specific conduct that is the basis of the offense
of conviction." Hughey v. United States, 495 U.S. 411, 413
(1990). In addition, where the criminal conduct includes "an
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offense that involves as an element a scheme, conspiracy, or
pattern of criminal activity," a victim is defined as "any person
directly harmed by the defendant's criminal conduct in the course
of the scheme, conspiracy, or pattern." 18 U.S.C. § 3663(a)(2)
(2000). In such cases, the district court may order restitution
without regard to whether the conduct that harmed the victim was
conduct underlying the offense of conviction. E.g., United
States v. Hensley, 91 F.3d 274, 277 (1st Cir. 1996).
It is undisputed that restitution is part of a
sentence. See, e.g., United States v. Wallen, 953 F.2d 3, 4 (1st
Cir. 1991) (referring to restitution imposed by the court as
"part of [the defendant’s] sentence"); 18 U.S.C. § 3663(a)(1)(A)
("The court, when sentencing a defendant . . . may order . . .
that the defendant make restitution" (emphasis added)). Thus,
under the VWPA and Hughey, the suppressed evidence in this case
may be included in the restitution award only if (1) the offense
involved a scheme, conspiracy, or pattern of criminal activity;
or (2) the evidence represents conduct that was the basis of the
offense of conviction. We address each issue in turn.
a. Scheme or Conspiracy
Under 18 U.S.C. § 3663(a)(2), any conduct that is in
the course of the scheme, conspiracy, or pattern may be
considered in calculating restitution. Thus, if this case
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involved a scheme, conspiracy, or pattern of criminal activity,
the district court could properly include the suppressed evidence
in the restitution order regardless of whether it was conduct of
conviction.
It is clear from the record that the offense with which
Acosta was charged was not one involving a scheme, conspiracy, or
pattern of criminal activity. Acosta pled guilty to "knowingly
and with intent to defraud traffic[king] in or us[ing] one or
more unauthorized access devises during any one-year period, and
by such conduct obtain[ing] anything of value aggregating $1,000
or more during that period." 18 U.S.C. § 1029(a)(2). It is
clear that this offense does not include as an element a scheme,
conspiracy, or pattern of criminal activity. United States v.
Blake, 81 F.3d 498, 506 (4th Cir. 1996) (stating that the offense
of fraudulent use of unauthorized access devices in violation of
18 U.S.C. § 1029(a)(2) does not "include as an element a scheme,
conspiracy, or pattern of criminal activity").
b. Conduct of Conviction
We now turn to the question of whether the suppressed
credit cards represented conduct that was the basis of the
offense of conviction. Surprisingly, none of the proceedings
below considered whether this evidence was conduct of conviction.
Rather, this evidence was treated as "relevant conduct"
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throughout.9 The distinction between relevant conduct and
conduct underlying the offense of conviction is an important one.
Unless the offense involves as an element a scheme, conspiracy,
or pattern of criminal activity, relevant conduct may not be
taken into account for calculation of restitution; only conduct
of conviction may be considered. United States v. Benjamin, 30
F.3d 196, 198 & n.1 (1st Cir. 1994). Nevertheless, the
responsibility to bring this issue to the court’s attention
rested with the defendant. Because Acosta failed to raise the
issue below, he has forfeited it; we therefore review the court’s
use of the suppressed evidence in calculating restitution for
plain error only. United States v. Olano, 507 U.S. 725, 731-32
(1993). Establishing plain error requires a four-part showing:
"that there was error; that it was plain; that the error affected
the defendant's substantial rights; and that the error adversely
9
In the Presentence Report (PSR), the suppressed transactions
are listed under the heading "Offense Conduct," along with a
notation that the evidence was suppressed. The PSR refers to the
suppressed transactions as "relevant conduct to the offense of
conviction." In the Addendum to the Presentence Report, the
Probation Office stated that the suppressed transactions were "part
of the same course of conduct to the offense of conviction." The
government referred to the suppressed evidence seized from
Castanos’s apartment as "relevant conduct" in both its sentencing
memorandum and its letter to the Probation Office listing the
restitution amounts requested. The district court adopted this
letter as an exhibit and used the amounts in it to order
restitution. The Presentence Report also referred to these items
as relevant conduct.
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impacted the fairness, integrity, or public repute of judicial
proceedings." United States v. Saxena, 229 F.3d 1, 5 (1st Cir.
2000). We see no plain error here.
Acosta argues that in light of the references to the
suppressed transactions as relevant conduct below, and the fact
that the government’s proffer at the change of plea hearing
included only the unsuppressed evidence, the evidence does not
support the argument that the suppressed credit cards represented
conduct of conviction. He further contends that because the
district court declined to use the suppressed evidence in
calculating the offense level as a due process matter because the
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violation of his rights was "egregious," it should likewise not
have used the evidence to calculate restitution.10
The government counters that the district court could
have found that the suppressed transactions were conduct
underlying the offense to which Acosta pled guilty. The
indictment to which Acosta pled guilty was very broad,11 charging
10
In excluding the suppressed evidence from the loss
calculation, the district court reasoned:
I think I'm satisfied that, given the totality
of the circumstances, the fact that the
violation of the defendant's constitutional
rights was egregious, that the suppressed
evidence as a matter of due process should not
be used to enhance his sentence under the
applicable Sentencing Guidelines. I don't find
that the police officers had an intent to
enhance the sentence. . . . However, the
violations are egregious, and I think the
purposes underlying the exclusionary rule are
well served . . . where we have egregious
violations and where the evidence, having been
suppressed in one case, is attempted to be used
in a subsequent case to enhance the punishment.
11
At least in the scheme context, other circuits have
determined the full amount of restitution authorized by statute by
"look[ing] to the scope of the indictment, which in turn defines
the scope of the criminal scheme for restitution purposes." United
States v. Ross, 279 F.3d 600, 609 (8th Cir. 2002) (internal
citations and quotations omitted) (alteration in original); United
States v. Ramirez, 196 F.3d 895, 900 (8th Cir. 1999) (noting that
other circuits agree in the criminal scheme context, the indictment
defines the scope of the scheme for restitution purposes (citing
United States v. Henoud, 81 F.3d 484, 488 (4th Cir. 1996) and cases
cited)); United States v. Jackson, 155 F.3d 942, 949-50 (8th Cir.
1998); United States v. Turino, 978 F.2d 315, 319 (7th Cir. 1992).
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him with using and attempting to use "one or more unauthorized
access devices" during a ten-month period and obtaining value of
at least $1,000 from this conduct. It specifically noted that
this conduct included, but was "not limited to," American Express
card number 371388014444020. The government points out that
charging the use of more than one credit card to obtain the
statutory jurisdictional amount of $1,000 is common practice.
Further, the government argues, Acosta’s reliance on
Hughey, 495 U.S. 411 (1990), to contend that the loss associated
with the suppressed evidence is not conduct of conviction, is
misplaced. In Hughey, the defendant pled guilty to one count of
a multi-count indictment for using stolen credit cards. Id. at
413. The Supreme Court reversed the district court’s restitution
order because it had included the use of other credit cards to
which the defendant had not pled guilty. Id. at 422.12 Here, in
contrast, Acosta pled guilty to one charge of using one or more
cards during a ten-month period. The government argues that this
charge included all possible credit cards connected to him during
this time frame. From discovery, Acosta was aware that the
government would introduce proof of his other use of cards. The
12
Congress responded to Hughey by expanding the scope of the
VWPA to include as victims those harmed by an offense that involves
a scheme, conspiracy, or pattern of criminal activity as an
element. 18 U.S.C. § 3663(a)(2).
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government argues that although it agreed not to introduce the
suppressed evidence, at sentencing, the district court could have
considered that evidence conduct of conviction.
We reject Acosta’s arguments and find no plain error in
the district court’s use of the suppressed evidence in the
restitution calculation. We do not equate the district court’s
refusal to use the evidence in the loss calculation with a
determination that the suppressed transactions were not part of
the offense of conviction.
At the sentencing hearing, the district court expressed
concern for Acosta’s right to due process and excluded the
illegally obtained evidence from its calculation. This, however,
did not remove the evidence itself from the offense conduct
actually charged in the indictment. A district court "need not
make open-court findings on the statutory factors when issuing a
restitution order so long as the record on appeal reveals that
the judge made implicit findings or otherwise adequately evinced
his considerations of those factors." Neal, 36 F.3d at 1200
(citing Savoie, 985 F.2d at 618). The district court adequately
explained that the policies underlying its decision to apply the
exclusionary rule in calculating offense level were different
from the strong policy considerations underlying the victims’
right to compensation:
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I’m not sure the police misconduct should
inure to the detriment of a victim with
respect to the restitution. That’s a whole
different pathway of legal social policy
issues to be considered. It’s one thing to
say we’re not going to use evidence obtained
through police misconduct for the purpose of
enhancing your incarcerative sentence. It’s
quite another thing to say to an innocent
victim we’re going to use police misconduct
for the purposes of depriving you of your
right to restitution. . . . I think the
policies underlying my decision to apply the
exclusionary rule here would apply only to
the punishment with respect to the
incarcerative sentence.
Had the district court considered the suppressed
evidence in sentencing (as our preceding analysis shows it could
properly have done), it could have calculated an offense level
based on all the transactions – suppressed and unsuppressed.
Prohibiting the court from using this same evidence to calculate
restitution would lead to the absurd result that although the
defendant could have been serving a sentence based in part on the
suppressed offenses, the victims of these offenses would not
receive compensation for their losses. Neither Hughey nor the
VWPA, whose objective is to compensate a wide class of victims
for their losses, could have intended such an outcome.
The record is clear that the district court examined
the factors surrounding the charges in the government’s letter to
the Probation Office listing its requested restitution amounts.
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The letter, prepared from affidavits of actual loss submitted by
the victim credit card companies, included the suppressed
evidence. Although the letter (and PSR) referred to these
transactions as "relevant conduct," the government argues that
they fall within the scope of Acosta’s criminal conduct in the
indictment and further support the contention that the suppressed
evidence was conduct that was the basis for the offense of
conviction. Acosta did not dispute the accuracy of the amounts
in the letter; his objection rested on his argument that the
suppressed evidence should not be used to calculate restitution.
As the government points out, the language of the
indictment is broad enough to encompass Acosta’s criminal conduct
of using both the suppressed and unsuppressed credit cards in the
ten-month period it covers. See, e.g., United States v.
Silkowski, 32 F.3d 682, 689 (2d Cir. 1984) (noting that defendant
must pay restitution only for losses "directly caused by conduct
within the temporal limits of the offense of conviction"); United
States v. Bailey, 975 F.2d 1028, 1033 (4th Cir. 1992) (upholding
restitution award to investors not mentioned in indictment and
distinguishing Hughey where the offense of "defrauding investors
of monies in excess of fifteen million dollars" was "defined
broadly in the indictment"); see also United States v. Pepper, 51
F.3d 469, 473 (5th Cir. 1995) (holding the dates specified in the
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indictment, along with a description of the unlawful conduct in a
scheme or defraud case, were sufficiently specific to satisfy
Hughey); United States v. Wise, 990 F.2d 1545, 1548 (10th Cir.
1992) (holding the district court erred in ordering restitution
in excess of the specific amount to which the defendant pled
guilty); cf. United States v. Akande, 200 F.3d 136, 142-43 (3rd
Cir. 1999) (vacating restitution order for losses caused by
conduct that fell outside the dates of the offense where the
indictment listed the time frame as "on or about December 31,
1997," but the plea agreement and colloquy established that the
offense charged did not occur before December 31, 1997); United
States v. Hayes, 32 F.3d 171, 172-73 (5th Cir. 1994) (vacating
restitution order for losses incurred before the date of the
offense of conviction); United States v. Cook, 952 F.2d 1262,
1264-65 (10th Cir. 1991) (vacating restitution order for losses
connected to a forty-three count indictment where the defendant
pled guilty to only three counts but the district court
erroneously construed the language of the plea agreement to find
that a guilty plea to one count was effectively a guilty plea to
all other counts). The suppressed transactions clearly fell
within the description of the offense and the time frame of the
conduct of use or attempted use of unauthorized access devices
during a ten-month period to which Acosta pled guilty.
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To summarize, the district court was not barred from
using the suppressed evidence in calculating restitution as part
of Acosta’s sentence. We are satisfied that the indictment
adequately detailed the offense of conviction to enable the
district court, in ordering restitution, to consider the
suppressed evidence as that underlying the conduct of conviction.
We are satisfied that although the district court did not
explicitly say it was considering the suppressed evidence conduct
of conviction, it did in fact do so and therefore did not err in
its restitution calculation. Accordingly, we hold that there was
no plain error in the district court’s use of the suppressed
evidence to calculate restitution.
III. CONCLUSION
The district court’s calculations of both loss and
restitution are AFFIRMED.
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