FILED
NOT FOR PUBLICATION AUG 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30334
Plaintiff - Appellee, D.C. No. 3:09-cr-00381-MO
v.
MEMORANDUM *
LESTER KASPROWICZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted July 15, 2011
Portland, Oregon
Before: PREGERSON and WARDLAW, Circuit Judges, and SEDWICK, **
District Judge.
Lester Kasprowicz appeals his convictions on one count of making false
statements to a federally insured institution (18 U.S.C. § 1014) and one count of
money laundering (18 U.S.C. § 1957). We have jurisdiction pursuant to 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
§ 1291 and we affirm and remand for amendment of the restitution obligation as
appropriate.
The charging decision in the case at bar was made before Kasprowicz went
to trial on mail fraud charges. Use of the investigative demand to obtain mortgage
documents–to the extent it was prosecutorial–also took place before Kasprowicz’s
mail fraud trial. Consequently, neither event supports a presumption of
vindictiveness. See United States v. Kent, --- F.3d ----, 2011 WL 2020853, at *5
(9th Cir. May 24, 2011) (“[I]n the context of pretrial plea negotiations,
vindictiveness [is] not . . . presumed simply from the fact that a more severe charge
followed on, or even resulted from, the defendant’s exercise of a right.”) (internal
quotations omitted). Moreover, the charges in the present case and the mail fraud
charges are based on separate nuclei of operative fact. See United States v.
Martinez, 785 F.2d 663, 669 (9th Cir. 1986). Kasprowicz produced no direct
evidence of vindictiveness and the facts of his case do not exhibit an appearance of
vindictiveness. See United States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007).
Kasprowicz is therefore not entitled to additional factual discovery.
Kasprowicz’s merger argument is premised on a misreading of applicable
case law. The bank transfer that formed the basis of Kasprowicz’s money
laundering conviction was not an essential part of the conduct giving rise to the
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false statements charge. False statements made to federally insured financial
institutions do not require a separate transfer of funds even if the false statements
are made to obtain a loan. Because viewing the “proceeds” from Kasprowicz’s
false statements as “receipts” does not give rise to a merger problem, it is not
necessary to apply the “profits” definition and both crimes were properly charged.
See United States v. Santos, 553 U.S. 507, 514 (2008) (plurality opinion); United
States v. Van Alstyne, 584 F.3d 803, 814 (9th Cir. 2009).
Before the offense was detected, Kasprowicz returned $3,193 of the loan
principal. See U.S.S.G. § 2B1.1 cmt. n.3(E)(i). The principal was the only amount
obtained by false statements and the bank earned the interest that Kasprowicz paid.
Crediting the amount by which the principal was paid down was not error.
Irrespective of Department of Justice policy, a district court “need only make a
reasonable estimate of the loss.” U.S.S.G. § 2B1.1 cmt. n.3(C). Adoption of the
bank’s estimated loss on sale of the foreclosed property–including the 7%
commission–was not improper.
The district court properly credited the value of the property at the time of
sentencing. U.S.S.G. § 2B1.1 cmt. n.3(E)(ii). Departing from the general rule
where a change in value is caused by unforeseeable market forces would either
overstate or understate the victim’s actual loss.
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The Mandatory Victim Restitution Act requires restitution to be reduced by
the value of returned property on the date the property was returned. 18 U.S.C. §
3663A(b)(1)(B)(ii). The trial court did not make an explicit finding on this point
and the government concedes that the restitution order was erroneously based on
West Coast Bank’s actual loss.
AFFIRMED and REMANDED for amendment of the restitution obligation
in the judgment as appropriate.
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