United States Court of Appeals
For the First Circuit
No. 06-2426
UNITED STATES OF AMERICA,
Appellee,
v.
IOAN EMIL CODARCEA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Oberdorfer,* Senior District Judge.
Michael J. Iacopino, by appointment of the Court, with whom
Jaye L. Rancourt and Brennan Caron Lenehan & Iacopino were on brief
for appellant.
Aixa Maldonado-Quiñones, Assistant United States Attorney,
with whom Thomas P. Colantuono, United States Attorney, was on
brief for appellee.
October 29, 2007
*
Of the District of Columbia, sitting by designation.
STAHL, Senior Circuit Judge. Defendant-Appellant Ioan
Emil Codarcea was convicted of bank fraud, conspiracy to commit
bank fraud, and aggravated identity theft for his role in a spate
of unauthorized ATM withdrawals targeting Bank of America (the
"Bank")1 during three separate time periods from 2003 to 2005.
Codarcea was sentenced to seventy months' imprisonment and ordered
to pay $363,266.59, a sum equivalent to the total loss suffered by
the Bank as a result of the fraudulent banking activity across all
three periods. Codarcea appeals his sentence, arguing that the
total loss was not reasonably foreseeable to him and that therefore
the district court erred in attributing the total amount of the
loss to him in its calculation of his sentence. Finding Codarcea's
argument meritless, we affirm the sentence.
I. Background
During three separate periods of time from 2003 to 2005,1
Codarcea and his co-conspirators used devices temporarily installed
at various ATMs in Massachusetts and New Hampshire to steal
personal banking information from numerous customers of the Bank,
enabling the creation of counterfeit ATM cards. The counterfeit
1
The first period spanned from March 2003 to May 2003 in the
Greater Boston area, the second period from December 2004 to
January 2005 in Revere, Saugus, and Medford, Massachusetts, and the
third period occurred in March 2005 in the vicinity of Manchester,
New Hampshire.
-2-
cards were used, in turn, to make unauthorized withdrawals from the
targeted bank accounts.
The government produced direct evidence tying Codarcea to
the first and third periods of fraudulent banking activity. The
evidence included bank surveillance photographs depicting Codarcea
tampering with certain of the compromised ATMs at or around the
time that account information was stolen and conducting
unauthorized transactions with counterfeit ATM cards. The
government also presented evidence that during the first period of
fraudulent transactions in 2003, Codarcea stayed at a Marriott's
Residence Inn in Woburn, MA, with at least three other people. A
hotel employee made a photocopy of Codarcea's Canadian driver's
license when he checked in, noting that he paid for the room in
cash. During this time, one of the other guests in the room, an
individual identified as Gheorghe Tolontan, paid $6,000 in $20
bills to purchase stereo equipment from a nearby store. Codarcea
checked out of the hotel abruptly on May 6, 2003, after a local
news station aired a story about the fraudulent banking activity,
including bank surveillance photographs of Codarcea and Tolontan.
While the government did not have direct evidence of
Codarcea's involvement in the second period of fraudulent
transactions, it did present circumstantial evidence linking all
three periods together and argued that all three periods were part
of one overarching conspiracy. The second period of unauthorized
-3-
banking activity occurred between the first and third periods, in
the same region of the country, and was executed with a very
similar modus operandi. Additionally, photographic evidence
credited by the district court established that at least one
individual (although not the defendant) involved in the fraudulent
third period transactions was involved in at least one of the
fraudulent second period transactions.
Codarcea was arrested on April 24, 2005 after making an
illegal border crossing from Canada into Vermont. He had in his
possession a Canadian driver's license with a number matching that
of the license photocopied by the Marriot hotel in 2003. Codarcea
was detained by the immigration authorities, pled guilty to
entering the United States illegally, and was sentenced to time
served. On May 11, 2005, a grand jury returned an indictment
charging Codarcea with bank fraud and conspiracy to commit bank
fraud, and a warrant for Codarcea's arrest on those charges was
issued that same day. On February 13, 2006, after the issuance of
two superseding indictments, an amended redacted indictment was
filed, charging Codarcea with (1) conspiracy to commit bank fraud,
in violation of 18 U.S.C §§ 371 and 1344; (2) bank fraud, in
violation of 18 U.S.C. § 1344; and (3-5) aggravated identity theft,
in violation of 18 U.S.C. § 1028A(a)(1). Codarcea was tried and
convicted on all counts.
-4-
Codarcea's Presentence Investigation Report ("PSR")
assigned him a base offense level of 7. After relevant
enhancements were calculated, Codarcea's total offense level was
21.2 Combined with a criminal history category of I, the
applicable Guidelines range was 37-46 months' imprisonment for
Counts One and Two. For the aggravated identity theft Counts Three
through Five, 18 U.S.C. § 1028A(b)(4) imposes a mandatory minimum
sentence of two years, which may run concurrently for each count
charged under the statute but must run consecutively to any other
sentence imposed. Seeing no reason to depart from the Guidelines,
the sentencing judge adopted the PSR's recommendations and
sentenced Codarcea to a term of 46 months for Counts One and Two,
to run concurrently, followed by 24 months for Counts Three through
Five, to run concurrently, for a total of 70 months' imprisonment.
II. Discussion
Codarcea timely objected to the loss calculation in the
PSR and renewed his objection at his sentencing hearing. The crux
of his objection is that the district court erred in finding him
responsible for the total loss of $363,266.59 suffered by the Bank
2
The PSR recommended a twelve-level enhancement under U.S.S.G.
§ 2B1.1(b)(1)(G) because the offenses involved a loss in excess of
$200,000 (but not more than $400,000) and a two-level enhancement
under U.S.S.G. § 2B1.1(b)(9) because the offenses involved the use
of sophisticated means. There was no recommended increase for the
number of victims because, although hundreds of individual accounts
were targeted, the only victim that suffered an actual loss was the
Bank.
-5-
across all three periods of fraudulent activity, which resulted in
the twelve-level sentence enhancement pursuant to U.S.S.G. §
2B1.1(b)(1)(G). We review a district court's interpretation and
application of the federal Sentencing Guidelines de novo, United
States v. Robinson, 433 F.3d 31, 35 (1st Cir. 2005), but review the
court's related factual findings, including its calculation of the
total loss amount, for clear error. See United States v. Alli, 444
F.3d 34, 37-39 (1st Cir. 2006).
Section 2B1.1(b)(1) calls for a sentencing court to
increase an offender's offense level in theft and fraud cases
according to the amount of loss resulting from the offense. A
defendant in a jointly undertaken criminal activity is liable for
the loss resulting from acts directly attributable to him and for
the loss resulting from the reasonably foreseeable acts of others
taken in furtherance of the jointly undertaken criminal activity.
See U.S.S.G. § 1B1.3(a)(1), (3); United States v. Pizarro-Berrios,
448 F.3d 1, 6 (1st Cir. 2006).
Codarcea argues on appeal that the government established
neither the parameters of the conspiracy for which he was convicted
nor his role in that conspiracy. He reasons that without that
information, the court cannot extrapolate that the losses resulting
from the transactions in which he was not shown to be directly
involved, either by compromising an ATM to steal customer account
data or using the stolen data to conduct unauthorized withdrawals,
-6-
are attributable to him. Codarcea maintains that he can therefore
only be held accountable for the losses that resulted from the
fraudulent transactions to which the government linked him by
direct evidence.3
It is true that "in cases involving a jointly undertaken
criminal activity, a district court must make an individualized
determination regarding the amount of loss attributable to, or
reasonably foreseeable by, a defendant, and may not rely solely on
what was charged in the jointly undertaken criminal activity count
of an indictment." Pizarro-Berrios, 448 F.3d at 7. Far from
relying merely on the charges in the indictment, however, at
Codarcea's sentencing hearing the district court carefully
scrutinized the evidence and delivered a lengthy and well-reasoned
analysis determining that it was more likely than not that the
total loss across all three periods was the result of one
overarching conspiracy, that Codarcea was involved in multiple
aspects of the conspiracy throughout its duration, and that
therefore the total loss was reasonably foreseeable to Codarcea.
We see no clear error in the district court's analysis.
In order to establish foreseeability, the sentencing court must
first "determine what acts and omissions of others were in
3
Codarcea calculates this amount to equal $99,736.00, which
would result in an eight-level increase pursuant to U.S.S.G. §
2B1.1(b)(1)(E), as opposed to the twelve-level increase imposed by
the district court.
-7-
furtherance of the defendant's jointly undertaken criminal
activity. This task requires the court to ascertain what activity
fell within the scope of the specific conduct and objectives
embraced by the defendant's agreement." United States v. LaCroix,
28 F.3d 223, 227 (1st Cir. 1994). The court must then "determine
to what extent others' acts and omissions . . . would have been
foreseeable by a reasonable person in defendant's shoes at the time
of his or her agreement." Id. However, "the court may consider
any explicit agreement or implicit agreement fairly inferred from
the conduct of the defendant and others." U.S.S.G. § 1B1.3, cmt.
n.2; Pizarro-Berrios, 448 F.3d at 8.
Codarcea was heavily involved in the scheme to defraud
the Bank by conducting unauthorized ATM withdrawals and does not
dispute that close to $100,000 of the total loss could be
attributed to him directly as a result of his own unlawful actions.
The remainder of the loss occurred during the same time period, in
the same area, and from ATMs compromised in the same manner as
those compromised by Codarcea. Given the evidence that the three
periods of fraudulent banking activity constituted one single
conspiracy, that Codarcea was involved in the conspiracy at the
beginning and at the end with no indication that he withdrew at any
time, and that he was linked to other individuals who were engaged
in identical fraudulent transactions, it is clearly more likely
than not that all of the fraudulent activity underlying the Bank's
-8-
total loss of $363,266.59 consisted of acts taken in furtherance of
an unauthorized ATM withdrawal scheme hatched by defendant and his
co-conspirators. Thus the district court did not err in finding it
reasonably foreseeable that "the fruits of [Codarcea's] efforts to
obtain ATM numbers for the purpose of exploiting them for
fraudulent purposes" would produce the total amount of losses that
the Bank in fact suffered, "even if some of those numbers were
acquired on different dates from the date when he was tied to the
ATM that was exploited."
III. Conclusion
For the reasons stated above, the defendant's sentence is
AFFIRMED.
-9-