In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3682 & 10-3715
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A IDA S ALEM and B OGDAN G ANESCU,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 923—John W. Darrah, Judge.
A RGUED M AY 31, 2011—D ECIDED S EPTEMBER 9, 2011
Before E ASTERBROOK, Chief Judge, and W OOD and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Aida Salem and Bogdan Ganescu
come before us again in these successive appeals. Salem
pled guilty to one count of wire fraud, see 18 U.S.C. § 1343,
and Ganescu pled guilty to several counts of wire fraud
and two counts of receipt of stolen funds, see 18 U.S.C.
§§ 1343, 2315, arising out of their participation in an
internet fraud scheme. In their first appeal, we held that
2 Nos. 10-3682 & 10-3715
the district court erred in not making certain findings
regarding the jointly undertaken criminal activity
under U.S.S.G. § 1B1.3(a)(1)(B) and we remanded. See
United States v. Salem, 597 F.3d 877 (7th Cir. 2010).
The parties returned to the district court where they
filed sentencing memoranda and were heard at a joint
sentencing hearing. At the end of the hearing, the district
court made findings and sentenced Salem to 97 months’
imprisonment and Ganescu to 78 months’ imprisonment,
the same sentences that the district court originally im-
posed. Salem and Ganescu appealed, contending that
the district court erred in concluding that they may be
held accountable for the conduct of their co-conspirators
under U.S.S.G. § 1B1.3(a)(1)(B). They assert that the
evidence failed to show that they “assisted or agreed to
promote” the criminal conduct of their co-conspirators.
(Ganescu concedes accountability for the criminal con-
duct of two co-conspirators—Gianina Simon and
Emanuel Matula.) Because the district court made the ap-
propriate findings and the record and reasonable infer-
ences drawn therefrom support its findings, we affirm.
I. Background
Between November 2003 and at least August 2006, more
than two thousand fell victim to the internet fraud
scheme in which Salem and Ganescu participated with
others. Individuals outside the United States, often
based in Romania (the “foreign co-schemers”), posed as
sellers of goods on eBay and other internet auction
Nos. 10-3682 & 10-3715 3
sites. The victims of the scheme were directed to send
payment by wire transfer, typically through Western
Union. The foreign co-schemers developed a network of
individuals in the United States, including numerous co-
schemers in the Chicago area, who collected payment
using false identifications. The co-schemers kept a per-
centage of the proceeds for themselves and forwarded
the remainder to the foreign co-schemers.
Following their guilty pleas, Salem and Ganescu were
sentenced and then appealed. They argued that the
district court erred in applying U.S.S.G. § 1B1.3(a)(1)(B)
and in making its relevant conduct findings. In the first
appeal, we agreed that the court erred and remanded
for further findings regarding the jointly undertaken
criminal activity. See Salem, 597 F.3d at 886-89, 890-91.
Specifically, we instructed the district court to determine
the scope of the criminal activity that Salem and Ganescu
agreed to jointly undertake. Id. at 890. Regarding Salem,
we directed the court to “determine whether the acts
of [Adrian Fechete, Gabriel Constantin, Ioan Moloman,
Mihail Hann, Marian Alexandru, Mihai Panaitescu,
Constantin Lucan, Stefan Dumitru, and Lucian Nanau]
were in furtherance of that jointly undertaken criminal
activity.” Id. Salem did not challenge the district court’s
finding that those co-schemers’ acts were reasonably
foreseeable to him. Because the district court had
omitted a reasonable foreseeability finding as to co-
schemer Mihai Bledea, we stated that appropriate
findings should be made as to him as well. Id.
4 Nos. 10-3682 & 10-3715
We also ruled that Salem waived any right to chal-
lenge the district court’s determination that he was ac-
countable for the conduct of Raimondoray Cerna and
Adrian Ianc. Id. In addition, we directed the district court
to “determine whether the acts of Ianc, Constantin,
Bledea, and EM (Emanuel Matula) were in furtherance
of Ganescu’s . . . jointly undertaken criminal activity.” Id.
at 891. Ganescu did not contest the district court’s
findings regarding the reasonable foreseeability of the
acts of these co-schemers. We noted that Ganescu
conceded he was liable “for Simon’s conduct [and]
Emanuel Matula’s conduct. . . .” Id. We refer the reader
to Salem, id. at 879-84, for further background regarding
the scheme and Salem’s and Ganescu’s specific roles
and involvement in the scheme.
On remand, the parties filed additional sentencing
memoranda and the district court held a joint sentencing
hearing. After hearing argument, the district court made
additional findings. The court first described the fraud
scheme generally as an internet fraud scheme in which
“victims were led to believe that they were purchasing
items that had been listed for sale on the internet,
typically via eBay.” The victims would send money to the
purported seller, and no goods were received in return.
The court found that the “Chicago area recruits, the so-
called 14 Chicago area defendants” participated in the
fraud scheme between November 2003 and August 2008,
by working with the foreign co-schemers to obtain
the victims’ funds and perpetuated the scheme by re-
turning a percentage of those funds to the Romanian co-
Nos. 10-3682 & 10-3715 5
schemers. It also found that the Chicago area defendants
picked up the fraud proceeds, typically retained be-
tween twenty and forty percent of the funds, and sent
the remainder to the Romanian co-schemers. More spe-
cifically, the court found that the Chicago area
defendants participated in the scheme by obtaining
multiple, false identification documents to use when
receiving the fraud proceeds from Western Union; re-
cruiting others to receive the fraud proceeds from
Western Union; causing the names of aliases and names
of recruits to be communicated to the foreign co-schemers;
receiving and directing others to receive fraud proceeds
from Western Union, all in the Chicago area; and trans-
mitting or causing the transmission of a portion of the
fraud proceeds to the foreign schemers. The false
identifications, the court concluded, were “obviously
protection against being detected in cashing these checks.”
The district court found that “Ganescu agreed to
jointly undertake this scheme that I’ve just generally
described” with Ianc, Constantin, Bledea, and Matula, and
“Ganescu agreed to participate in this scheme with
them jointly.” The court further found that the conduct
of Ianc, Constantin, Bledea, and Matula was in fur-
therance of this jointly undertaken criminal activity.
These findings were based on the following factors out-
lined in the presentence investigation report, the gov-
ernment’s version of the offense and the sentencing sub-
missions (the court noted that “the government’s sub-
mission in this regard was not contested”): similarities
in the modus operandi, including the use of fictitious
bank accounts for fictitious vendors, the internet solicita-
6 Nos. 10-3682 & 10-3715
tion scheme, and similar email presentations, even as to
typographical errors; Ganescu’s knowledge of the scope
of the scheme, including the fact that these co-schemers
associated with each other and the evidence supported
the inference that Ganescu was aware of the participa-
tion in the scheme by the others “just named”; coordina-
tion among the co-schemers “just mentioned,” including
the shared common sources of Western Union trans-
actions, the travel together between currency exchange
locations, and the sharing of other information; and
Ganescu’s length of participation in the scheme (his
participation began in August 2004). The court noted
that some of the named co-schemers caused the pro-
ceeds to be wire-transferred to Romania, which
“would be joint proceeds in many instances.” In addi-
tion, telephone records indicated constant contact
between the co-schemers. The court expressly adopted
all pertinent parts of the presentence investigation
report as to the relevant conduct issue and found that
Ganescu’s total offense level was 28, that his criminal
history category was I, and again sentenced him to
a within-guideline sentence of 78 months.
The district court found that Salem agreed to jointly
undertake criminal activity with Cerna, Fechete, Ianc,
Constantin, Moloman, Hann, Alexandru, Panaitescu,
Lucan, Dumitru, and Nanau. It adopted its statement of
the overall scheme that it made in sentencing Ganescu,
without objection from the parties. The court also found
that the conduct of the co-schemers it identified (Cerna,
Fechete, Ianc, Constantin, Moloman, Hann, Alexandru,
Panaitescu, Lucan, Dumitru, and Nanau) was in further-
Nos. 10-3682 & 10-3715 7
ance of Salem’s jointly undertaken criminal activity.
(It included Cerna and Ianc even though it thought
Salem waived any issue as to his accountability for their
conduct.) Initially, the court apparently misspoke and
said that the conduct of these co-schemers was in further-
ance of “this conspiracy,” but quickly clarified that it
was finding that their conduct was in furtherance of “the
jointly undertaken criminal activity.” The court stated
that its “in furtherance” finding was based on “everything
that I’ve read, including the government’s submis-
sion, which was not objected to, at least the factual
parts[.]” Earlier in the hearing, the court expressly stated
that it had read the plea agreements, the presentence
investigation reports, including corrected and supple-
mental reports, the defendants’ submissions, and the
government’s version of the offense, including attach-
ments. Thus, we can conclude that the court’s “in further-
ance of” finding was also based on these documents.
The court specifically cited the following evidence as
support for its finding that the co-schemers’ conduct
was in furtherance of the jointly undertaken criminal
activity: similar modus operandi, including the use of
similar presentations on the internet; Salem’s knowl-
edge of the scope of the scheme; the interrelationship
between the named co-schemers and Salem; the coordina-
tion among them—sharing false addresses and tele-
phone numbers, frequent use of common fake identifica-
tions, and maintenance of common bank accounts; tele-
phone records indicating the communications between
them; and the length of Salem’s participation in the
scheme. Then the court determined that Salem’s total
8 Nos. 10-3682 & 10-3715
offense level was 28 and that his criminal history cate-
gory was II, and imposed a within-guideline sentence of
97 months.1
II. Discussion
We review the district court’s interpretation and ap-
plication of the sentencing guidelines de novo and review
its factual findings for clear error. United States v.
Wright, Nos. 10-1249 & 10-1956, 2011 WL 2683198, at *8
(7th Cir. July 12, 2011). A factual finding is clearly er-
roneous only if after reviewing the evidence we are
“ ‘firmly convinced’ that a mistake has been made.” United
States v. Shamah, 624 F.3d 449, 458 (7th Cir. 2010), cert.
denied, 131 S. Ct. 1529 (U.S. Feb. 22, 2011). The district
court may draw reasonable inferences from the record
in making its factual findings at sentencing. See United
States v. Cruz-Rea, 626 F.3d 929, 928 (7th Cir. 2010)
1
The district court made specific findings regarding Bledea
but in connection with its findings regarding Ganescu’s ac-
countability rather than Salem’s, which was error. However,
this error was harmless because the transactions conducted by
Bledea resulted in a loss amount of no more than $389,000 and
involved around 178 victims. Even if this loss is not counted
in the total loss amount, the total loss exceeds $1,000,000 but
is less than $2,500,000, making the 16-point increase in
offense level appropriate under U.S.S.G. § 2B1.1(b)(1). And
if these victims are not counted in the total number of
victims, the total still far surpasses the 250 victims necessary
for the 6-point increase under U.S.S.G. § 2B1.1(b)(2)(C).
Nos. 10-3682 & 10-3715 9
(“[W]hen a district court chooses between two permis-
sible inferences from the evidence, the factual findings
cannot have been clearly erroneous.”); Salem, 597 F.3d
at 889 (same).
Under U.S.S.G. § 1B1.3(a)(1)(B), “a defendant may be
held accountable for the conduct of others ‘if that
conduct was in furtherance of a jointly undertaken
criminal activity and reasonably foreseeable in connec-
tion with that criminal activity.’ ” Salem, 597 F.3d at 884-
85 (quoting United States v. Fouse, 578 F.3d 643, 653 (7th
Cir. 2009)). The defendants argue that to establish
jointly undertaken criminal activity, the government had
to prove that they “assisted or agreed to promote” a co-
conspirator’s conduct, which they interpret as “doing
something to help the co-conspirator commit his/her
criminal acts.” In doing so, they attempt to resurrect
arguments raised in their first appeal. In United States v.
Soto-Piedra, we said that the “[a]ctions of coconspirators
that a particular defendant does not assist or agree
to promote are generally not within the scope of that
defendant’s jointly undertaken activity.” 525 F.3d 527, 533
(7th Cir. 2008). In Salem, we interpreted the “assist or agree
to promote” language as restating “the requirement
that the conduct of others for which a defendant is ac-
countable must be in furtherance of the joint criminal
activity that the defendant in question undertook.” 597
F.3d at 885. None of our cases requires that a defendant
at the bottom of a conspiratorial hierarchy or pyramid
engage in some affirmative conduct to help a co-con-
spirator commit each of his or her criminal acts before
the defendant may be held accountable for such acts.
10 Nos. 10-3682 & 10-3715
Nor have we required a co-conspirator-by-co-conspirator
analysis when determining the scope of the jointly under-
taken criminal activity.
Rather, the district 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; see also Soto-Piedra, 525 F.3d at 532. Several
factors are relevant in determining the scope of jointly
undertaken criminal activity: (1) the existence of a
single scheme, see United States v. Adeniji, 221 F.3d 1020,
1028 (7th Cir. 2000); (2) similarities in modus operandi,
see id. 1028-29 (noting that the defendants “took virtually
identical steps in setting up mailing addresses and bank
accounts for the fictional . . . vendors” closely in time);
(3) coordination of activities among schemers, see id. at
1028 (multiple telephone calls between phones associ-
ated with the defendants confirmed that they were co-
ordinating their activities); United States v. Giang, 143 F.3d
1078, 1081 (7th Cir. 1998) (stating that the defendant’s
“close collaboration with his cohorts” established a joint
undertaking); U.S.S.G. § 1B1.3 cmt. n.2, illus. (c)(8);
(4) pooling of resources or profits, see Adeniji, 221 F.3d at
1028 (sharing of proceeds); U.S.S.G. § 1B1.3 cmt. n.2, illus.
(c)(6); (5) knowledge of the scope of the scheme, see United
States v. Thomas, 199 F.3d 950, 954 (7th Cir. 1999); and
(6) length and degree of the defendant’s participation in
the scheme, see id.
On remand, the district court made appropriate
findings regarding jointly undertaken criminal activity,
and its findings are well-supported by the record and
Nos. 10-3682 & 10-3715 11
reasonable inferences drawn therefrom. In this case,
there is a single scheme, similarities in modus operandi,
coordination of activities among co-schemers, and
sharing of resources, including information and rides to
currency exchanges. Further, both Salem and Ganescu
knew of the scope of the scheme and participated in it
fully and for a lengthy time period—more than two
years. And by returning a portion of the fraud proceeds
to the Romanian schemers, the Chicago area co-
schemers, including Salem and Ganescu, “would ensure
that repeat business would be sent their way,” United
States v. Aslan, 644 F.3d 526, 530 (7th Cir. 2011), thus
promoting the scheme and other co-schemers’ activities.
The evidence raised a reasonable inference that
Salem and Ganescu and the co-schemers identified
by the district court were working together in jointly
underaken criminal activity, as opposed to working
independently and autonomously. By working to-
gether and coordinating their efforts, Salem and
Ganescu assisted and furthered (or promoted) the other co-
schemers’ criminal acts which were part of the joint
criminal activity. Contrary to the defendants’ assertion,
and as the record shows, the district court did not
conclude that by participating in the scheme, Salem and
Ganescu agreed to advance the goals of the entire
scheme and are thus accountable for jointly undertaken
activity. Their assertion is further undermined by the
fact that they were not held accountable for the
conduct of all the Chicago area defendants.
Despite the defendants’ contention, United States v.
Studley, 47 F.3d 569 (2d Cir. 1995), is not on “all fours”
12 Nos. 10-3682 & 10-3715
with this case. Studley involved a telemarketing loan
fraud scheme. Studley was hired as a sales representative
to process calls from would-be borrowers. Id. at 571. The
evidence did not show that Studley did anything to
further the scheme outside of his own sales efforts or
that he assisted other sales representatives with their
sales. Id. at 576. Further, Illustration (c)(7) of Application
Note 2 to U.S.S.G. § 1B1.3, which shows that a defendant’s
knowledge of the scope of an overall conspiracy is insuf-
ficient to hold him accountable for the activities of
the entire conspiracy, is of no help to the defendants
in this case. As should be apparent by this point in
our opinion, the district court did not hold Salem and
Ganescu accountable solely based on their awareness
of the scope of the entire scheme.
III. Conclusion
The district court made appropriate findings on
remand, and its findings are supported in the record.
We therefore A FFIRM its judgments.
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