NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 5, 2010*
Decided November 24, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 09‐3787 & 09‐4100
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff‐Appellee, Court for the Northern District
of Illinois, Eastern Division.
v.
No. 07‐cr‐862
GABRIEL TOADER and RAUL
BORLEA, Matthew F. Kennelly,
Defendants‐Appellants. Judge.
O R D E R
Gabriel Toader and Raul Borlea were among several defendants charged in relation
to a fraud scheme. Toader pleaded guilty to one count of wire fraud, see 18 U.S.C. §§
*
This appeal is successive to Appeal Nos. 08‐2378, 08‐3226, and 08‐3238 and has been
submitted to this panel under Operating Procedure 6(b). After examining the briefs and the record,
we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs
and the record. See Fed. R. App. P. 34(a)(2).
Nos. 09‐3787 & 09‐4100 Page 2
1343 and 2, and was sentenced to 96 months’ imprisonment. Borlea was tried by a jury
who found him not guilty as to one count of wire fraud, see 18 U.S.C. §§ 1343 and 2, but
guilty as to eight other counts of wire fraud and two counts of mail fraud, see 18 U.S.C.
§§ 1341, 1343 and 2. He was sentenced to 45 months’ imprisonment. They have
appealed. Toader contends that the district court’s findings were insufficient to hold
him accountable for Gabriel Constantin’s activities as relevant conduct under U.S.S.G. §
1B1.3. Borlea argues that the federal courts lack jurisdiction over him because he is a
Moorish National Citizen. We turn first to Toader’s appeal.
Gabriel Toader
United States v. Salem, 597 F.3d 877 (7th Cir. 2010), addresses the appeals of three
defendants charged in another case arising out of the same overall fraud scheme
charged in this case and contains a general description of the fraud scheme. We refer
the reader to that opinion for background information about the scheme. See id. at 879‐
80.
In this case, the district court found that Toader participated in the scheme for more
than two years. The district court described Toader’s role as receiving communications
from the foreign co‐schemers, collecting money from the domestic co‐schemers,
transmitting or wiring fraud proceeds to the foreign co‐schemers, and in some
instances, obtaining fake identification for others to use in the scheme. The district court
also found that Toader was aware of transactions at Western Union, was responsible for
monitoring the receipt of money and ensuring that the foreign schemers got what they
were entitled to under the scheme, and involved family members and others in the
scheme.
Toader challenges the sufficiency of the district court’s findings to support its
conclusion that he should be held accountable for the activities of co‐schemer Gabriel
Constantin as relevant conduct under U.S.S.G. § 1B1.3. Toader argued that he should be
held responsible for a loss less than $1,000,000 and for fewer than 250 victims. The
government asserted that he should be held accountable for the jointly undertaken
fraudulent conduct directly attributable to Constantin. The district court agreed with
the government and found that the loss amount was greater than $1,000,000, increasing
Toader’s offense level by sixteen, see U.S.S.G. § 2B1.1(b)(1)(I), and that the number of
victims was greater than 250, adding six more levels, see U.S.S.G. § 2B1.1(b)(2)(C). After
adding five levels based on its findings that a substantial part of the offense occurred
outside the United States, see U.S.S.G. § 2B1.1(b)(9)(B), and making various adjustments
under U.S.S.G. §§ 3B1.1(b) and 3E1.1, the resulting offense level was thirty‐one. Given
Nos. 09‐3787 & 09‐4100 Page 3
an offense level of thirty‐one and a criminal history category of I, Toader’s guideline
range was 108 to 135 months’ imprisonment. The district court considered the
sentencing factors, including sentencing disparities, and imposed a below‐guidelines
sentence of 96 months.
We review the district court’s factual findings for clear error. United States v. Alaka,
614 F.3d 368, 371 (7th Cir. 2010). A finding of fact is clearly erroneous “if, based upon
the entire record, ‘we are left with the definite and firm conviction that a mistake has
been committed.’” Id. (quoting United States v. Carani, 492 F.3d 867, 875 (7th Cir. 2007)).
We addressed the need for a sentencing court to make specific findings on “key
elements of the relevant conduct analysis” in Salem. We instructed that:
In applying U.S.S.G. § 1B1.3(a)(1)(B), the district court must make a
preliminary determination of the scope of the criminal activity the defendant
agreed to jointly undertake. Then the court must make a two‐part determination
of whether the conduct of others was both in furtherance of that joint criminal
activity and reasonably foreseeable to the defendant in connection with the joint
criminal activity.
597 F.3d at 886 (emphasis in Salem) (citations omitted). Toader contends that the district
court did not make these findings, requiring a remand for re‐sentencing. The
government concedes that the court did not make a finding as to the scope of the jointly
undertaken criminal activity, that this was clear error, and that a limited remand is
appropriate.
However, the government asserts that the district court did find that Constantin’s
conduct was reasonably foreseeable to Toader. The government points to the following
findings:
There was . . . some of the people who were going in and getting
money and then bringing it back, they may have worked for Mr. Constantin at
some point. They may have worked for Mr. Toader at some points. They may
have worked for both of them at various points. They may have worked for other
people, too.
I also think that there is a significant amount of evidence that Mr.
Toader was aware of Constantin’s participation in the scheme and that they were
both parts of the same overall enterprise.
Nos. 09‐3787 & 09‐4100 Page 4
The district court cited some of the evidence of Toader’s involvement with Constantin:
common domestic co‐schemers who collected funds for both Toader and Constantin;
Toader was involved with Constantin in TDG Consulting, a sham company; and the
volume of phone calls between Toader and Constantin when considered along with the
other evidence “seem[s] . . . to support the proposition that Mr. Toader was aware that
he was part of an enterprise that Mr. Constantin was also aware of.” The district court
noted the evidence of the connection between Toader and Constantin involving the
southern Florida aspect of the scheme. The court also referred to admissions by co‐
defendant Mircea Alin Blaj in his plea agreement. The district court then described
Toader’s and Constantin’s connection as a non‐perfect hub and spokes situation:
although each was responsible for his own line of authority or chain of command,
“there was a lot of interaction along the spokes.” The court explained that it was
attributing the losses along one line of authority to an individual along another line of
authority “on the grounds that the defendant that I’m sentencing is . . . aware of the
other person’s involvement [and] aware it’s all part of a single organized scheme
originated by other people[.]”
We cannot agree that the district court’s findings were sufficient with respect to
whether Constantin’s conduct was reasonably foreseeable to Toader for purposes of
U.S.S.G. § 1B1.3(a)(1)(B). A finding that Toader was aware of Constantin’s involvement
in the scheme is insufficient. Even if a defendant was aware that another person was
involved in one part of a broad scheme, if the defendant did not join that part, his
sentence cannot be based on it. See Salem, 597 F.3d at 889; United States v. Fox, 548 F.3d
523, 531‐33 (7th Cir. 2008) (vacating and remanding where the district court considered
whether the coconspirator’s conduct was foreseeable to the defendant but did not
consider “whether that awareness arose out of [the defendant’s] joint criminal activity
with [the coconspirator].”). The district court found that “Mr. Toader was aware of
Constantin’s participation in the scheme and that they were both parts of the same
overall enterprise.” (emphasis added). But the court did not explicitly find that Toader
and Constantin joined the same part of the overall enterprise. Nor did it find that
Constantin’s conduct was in furtherance of the joint criminal activity and reasonably
foreseeable to Toader in connection with that activity.
Raul Borlea
Borlea argues that the federal courts lack subject matter jurisdiction over him and
that the laws he is charged with violating are inapplicable to him because he is a Native
Nos. 09‐3787 & 09‐4100 Page 5
Asiatic Moorish National Citizen.1 This argument is frivolous. The district court has
original jurisdiction over “all offenses against the laws of the United States.” 18 U.S.C. §
3231. Borlea was charged with committing several offenses against the laws of the
United States. We have rejected a similar challenge to the district court’s jurisdiction by
a defendant asserting that he was a Moorish national and therefore need obey only
those laws mentioned in an ancient treaty between the United States and Morocco.
United States v. James, 328 F.3d 953 (7th Cir. 2003). As stated in James: “Laws of the
United States apply to all persons within its borders. Even if James were not a citizen of
the United States . . . he would be obliged to respect the laws of this nation.” Id. at 954.
Conclusion
For the foregoing reasons, we AFFIRM the district court’s judgment with respect to
Borlea and VACATE Toader’s sentence and REMAND for re‐sentencing in accordance with
this decision. On remand the district court must make findings with regard to the scope
of criminal activity Toader agreed to jointly undertake and whether Constantin’s
conduct was in furtherance of that criminal activity and reasonably foreseeable to
Toader in connection with that criminal activity.
1
In a section of his brief entitled, “Statement of the Case,” Borlea comments on other aspects
of the case, challenging the sufficiency of the evidence to support his convictions and arguing that
certain testimony was not credible. However, the only argument he develops in a meaningful way
is his jurisdiction argument; he has thus forfeited any other argument. See United States v.
Blagojevich, 612 F.3d 558, 560 (7th Cir. 2010).