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NOT FOR PUBLICATION AUG 16 2011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. 10-30333
Plaintiff - Appellee, D.C. No. 3:09-cr-00287-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 seven counts of mail fraud in
violation of 18 U.S.C. § 1341. We have jurisdiction pursuant to 28 U.S.C. § 1291;
we affirm and remand for additional findings.
*
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.
The individual counts alleged in the indictment were properly premised on
individual mailings in furtherance of a single scheme to defraud. United States v.
Vaughn, 797 F.2d 1485, 1493 (9th Cir. 1986).
Kasprowicz argues that the hallmark of a scheme to defraud is obtaining
money without provision of return services and that, because he provided
brokerage services, he could not have been involved in a scheme to defraud. The
defining characteristic of a scheme to defraud is actually deceit. United States v.
Milovanovic, 627 F.3d 405, 410 (9th Cir. 2010) (“Fraud generally means
deception, the use of misrepresentation to obtain something of value or deprive
another of something of value.”). A rational trier of fact could find that
Kasprowicz obtained money through deceit based on the evidence presented at
trial.
A reasonable jury could also conclude that Kasprowicz intended to defraud
his customers based on his use of aliases and multiple business names–some of
which were similar to reputable moving and shipping companies–as well as
variance between the initial estimate and the final price, and all other aspects of the
scheme. That is true regardless of whether there are non-fraudulent explanations
for each action individually. See United States v. Nevils, 598 F.3d 1158, 1161 (9th
Cir. 2010) (en banc).
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The portion of the jury instruction describing half-truths and concealment as
valid forms of misrepresentation was an accurate depiction of Ninth Circuit law.
United States v. Beecroft, 608 F.2d 753, 757 (9th Cir. 1979) (“Deceitful statements
of half-truths or the concealment of material facts is actual fraud under the
statute.”). If the elements of the mail fraud statute are proved, mail fraud has been
committed and no separate violation need be established. United States v. Green,
592 F.3d 1057, 1064 (9th Cir. 2010) (“[W]e believe it is settled that wire fraud
does not require proof that the defendant’s conduct violated a separate law or
regulation, be it federal or state law.”). The instructions did not allow for good
faith price estimates to form the basis of conviction. If the jury relied on
Kasprowicz’s price quotes, it was required to find that the quotes were falsely
made in order to deceive customers.
The district court could reasonably conclude that the calculation in the Pre-
Sentence Report provided a reasonable estimate of the loss to the individual
victims. See U.S.S.G. § 2B1.1 cmt. n.3(C) (A district court “need only make a
reasonable estimate of the loss.”). Given the total loss attributable to relevant
conduct, even if Kasprowicz had been credited the entire amount of the loss to the
individuals, his sentence would have been subject to the same 10-level increase
that the district court employed. Consequently, any error in calculating the loss
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figure at sentencing was harmless. See United States v. Grissom, 525 F.3d 691,
696 (9th Cir. 2008).
The losses to third-party businesses considered by the district court at
sentencing were attributable to relevant conduct. U.S.S.G. § 1B1.3(a)(1)(A),
(a)(2); U.S.S.G. § 1B1.3 cmt. n.9(A), (B). Sentence enhancements based on losses
to third-party businesses and individuals not named in the indictment did not
violate Kasprowicz’s Sixth Amendment right to a jury trial because the third-party
victims and their losses were only taken into account for purposes of determining
an advisory sentencing range. See United States v. Booker, 543 U.S. 220, 245
(2005).
Assuming that evidence of loss to DEX One, Inc. had a disproportionate
effect on Kasprowicz’s sentence, the probative value of the records produced was
not undermined to the point that the records did not constitute clear and convincing
evidence that Kasprowicz had incurred the balances reflected.
The district court included a two-point enhancement for obstruction of
justice based on perjury. See U.S.S.G. § 3C1.1 & cmt. n.4(b). Where a defendant
objects to such an enhancement, the district court must make additional findings
supporting it. United States v. Dunnigan, 507 U.S. 87, 95 (1993). However,
neither the testimony regarding Sally Cook nor that regarding falsified W-2 forms
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was material to Kasprowicz’s mail fraud convictions and therefore neither could
form the basis of an obstruction enhancement. United States v. Armstrong, 620
F.3d 1172, 1177 (9th Cir. 2010). The district court’s more general statement that
the evidence before it was sufficient to establish obstruction of justice did not
explicitly encompass the factual predicates of perjury. See id. Therefore, we
remand this case to the district court to reconsider whether the obstruction of
justice enhancement is warranted and for resentencing.
AFFIRMED and REMANDED.
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