Filed: Jun. 30, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4662 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. INGRID DINA LEVY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:07-cr-00265-JCC-1) Submitted: April 7, 2009 Decided: June 30, 2009 Before MICHAEL, MOTZ, and SHEDD, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curi
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4662 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. INGRID DINA LEVY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:07-cr-00265-JCC-1) Submitted: April 7, 2009 Decided: June 30, 2009 Before MICHAEL, MOTZ, and SHEDD, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curia..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4662
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
INGRID DINA LEVY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:07-cr-00265-JCC-1)
Submitted: April 7, 2009 Decided: June 30, 2009
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Nathan Lewin, Alyza D. Lewin, LEWIN & LEWIN, LLP, Washington,
D.C., for Appellant. Dana J. Boente, Acting United States
Attorney, Jay V. Prabhu, Assistant United States Attorney,
Thomas S. Dougherty, Tyler G. Newby, UNITED STATES DEPARTMENT OF
JUSTICE, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ingrid Dina Levy was convicted by a jury of three
counts of mail fraud, in violation of 18 U.S.C. § 1341 (2006),
and four counts of wire fraud, in violation of 18 U.S.C. § 1343
(2006). Levy was sentenced to forty-six months’ imprisonment
and ordered to pay $168,300.77 in restitution. Levy appeals her
convictions and sentence. We affirm Levy’s convictions, but
vacate the sentence and remand for resentencing.
I.
Viewing the evidence in the light most favorable to
the Government, see Glasser v. United States, 315 U.S. 60, 80
(1942), the facts can be summarized as follows: In 2004, Levy
agreed to serve as the supplier for an online business selling
wholesale women’s fashions run by Ashley Foster. Pursuant to
their agreement, Foster would take orders and collect payments
and Levy would send the merchandise directly to the customer.
In December of 2004, Judson Burdon ordered a number of items
from the website and tendered payment via wire transfer to
Foster. Foster forwarded the payment to Levy, who never sent
the merchandise to Burdon. When Burdon complained to Foster,
Levy advised Foster to make misrepresentations to Burdon,
including inventing the name of a supplier that did not exist.
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As a result of incidents similar to this one, Foster
became the target of harassment and complaints from customers in
online fora and eventually shut down the website. Foster and
Levy then decided to start another online business, this time
selling retail women’s fashion clothing. Again, Levy was to be
the supplier of the merchandise and informed Foster that she
would send the items directly to the customers. The evidence at
trial showed that this business also was a failure due to
customer complaints of non-receipt and partial-receipt of
merchandise. Many, if not all, of the customers obtained
refunds from either their credit card companies or from Foster.
As a result of her dealings with Levy, Foster suffered losses
from these businesses.
At and around this same time and in the years
following, Levy set up several online businesses of her own to
sell women’s fashion clothing. In doing so, Levy set up a
mailbox in another state to serve as the address for her
businesses and listed fictitious names on the websites. In
October 2005, Stacy Armstrong ordered a number of items from one
of Levy’s websites. Armstrong tendered payment by check. Levy
never completed Armstrong’s order and instead sent a
significantly smaller number of non-conforming goods while
promising a refund for the undelivered portion of the order.
Levy, however, never provided a refund to Armstrong.
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Annamarie Siegler also placed an order on one of
Levy’s websites and transferred payment into Levy’s account.
Siegler never received her merchandise, despite assurances by
Levy that it had been sent. In retaliation, Siegler placed the
same order repeatedly on Levy’s site, costing Levy a transaction
fee each time. In response to this, Levy drafted a fraudulent
summons and complaint purporting to be official court documents
filed in state court in California and sent them to Siegler.
Levy used a fictitious law firm name that she previously had
used in drafting letters to various online fora.
In December 2005, Special Agent Ryman of the Federal
Bureau of Investigation (“FBI”) placed an order from Levy’s site
using an undercover identity. Ryman tendered payment to Levy
and Levy, using a fictitious name, assured Ryman that the
merchandise had been shipped. Levy never sent any of the items
that Ryman ordered. After this incident, FBI agents obtained a
warrant to search Levy’s home. While executing the search
warrant, Ryman and another agent interviewed Levy. Levy
admitted to the agents that she knew what she had been doing was
“criminal” and that the majority of the orders that were placed
on her websites remained unfulfilled.
At trial, the Government introduced three charts
created by Ryman and summarizing records that also had been
introduced. The first was Government Exhibit 45, a bar graph
4
showing a breakdown of Foster’s income and losses from her
ventures with Levy. Ryman testified that this exhibit was based
on Foster’s bank records and Government Exhibit 46, records of
the credit card charge-backs for customers who received refunds
for non-receipt of merchandise. The second was Government
Exhibit 30, a chart listing the names and purported loss amounts
of customers who had complained about Levy’s businesses on an
internet website called the Internet Crime Complaint Center
(“IC3”). The final chart was Government Exhibit 2, a bar graph
depicting the total amount of deposits into, and purchases of
merchandise from, Levy’s account. Ryman testified that he
prepared this chart by reviewing Levy’s bank and credit card
records that previously had been introduced into evidence.
In addition, the Government introduced Exhibit 31, a
collection of emails from Levy’s home computer obtained during
the search of her house. This exhibit contained emails from
disgruntled customers complaining about partial and non-receipt
of merchandise, and Levy’s responses to those customers. The
district court admitted each of these exhibits over Levy’s
objections.
The jury convicted Levy of all seven counts. At
sentencing, the Government produced a chart, again compiled by
Ryman, listing eighty-two victims and $168,300.77 in losses.
Ryman testified that he generated this chart by first compiling
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a list of victims from the IC3 website, then identifying the
victims’ email addresses from Levy’s computer, and attempting to
contact the victims to verify their complaints. Ryman admitted
that he was only able to speak with fifteen of these victims.
Based on Ryman’s testimony, the district court found by a
preponderance of the evidence that there were at least
eighty-two victims of Levy’s crimes, who suffered $168,300.77 in
losses.
The court therefore enhanced Levy’s offense level
under the Sentencing Guidelines by four levels based on the
number of victims and by ten levels based on the loss figure.
See U.S. Sentencing Guidelines Manual (“USSG”) § 2B1.1(b)(1)(F),
(b)(2)(B) (2007). Because Levy’s criminal history placed her in
Category I, the advisory Sentencing Guidelines range was
forty-six to fifty-seven months’ imprisonment. After
considering the 18 U.S.C. § 3553(a) (2006) factors, the district
court sentenced Levy to forty-six months’ imprisonment. The
district court also ordered Levy to pay restitution in the loss
amount pursuant to 18 U.S.C. § 3663A (2006).
II.
Levy first argues that the district court erred in
admitting Government Exhibits 2, 30, 31, 45, and 46 into
evidence. This court reviews a district court’s determination
6
of the admissibility of evidence for abuse of discretion.
United States v. Hedgepeth, 418 F.3d 411, 418-19 (4th Cir.
2005). “An abuse of discretion occurs only when a trial court
has acted ‘arbitrarily’ or ‘irrationally’ in admitting evidence,
when a court has failed to consider ‘judicially recognized
factors constraining its exercise’ of discretion, or when it has
relied on ‘erroneous factual or legal premises.’”
Id. at 419
(quoting United States v. Simpson,
910 F.2d 154, 157 (4th Cir.
1990); James v. Jacobson,
6 F.3d 233, 239 (4th Cir. 1993)). In
addition, “‘[a]ny error in [the] admission or exclusion [of
evidence] is subject to the harmless error test.’” United
States v. Loayza,
107 F.3d 257, 263 (4th Cir. 1997) (quoting
United States v. Francisco,
35 F.3d 116, 118 (4th Cir. 1994)).
Government Exhibits 2, 30, and 45 are summary charts
and graphs. Levy objects to their admission on several grounds,
including relevance, lack of advance notice, inaccuracy, and
hearsay, and argues that these charts did not assist the jury
and were unduly prejudicial. “Summary charts are admissible if
they aid the jury in ascertaining the truth.” Loayza, 107 F.3d
at 264 (citing United States v. Johnson,
54 F.3d 1150, 1159 (4th
Cir. 1995)). The district court should consider “[t]he
complexity and length of the case as well as the numbers of
witnesses and exhibits” in determining admissibility.
Id. In
addition, the court can dispel any prejudice to the defendant in
7
the admission of charts and summaries by giving the defendant
the opportunity to cross-examine the witness who prepared the
exhibits and giving a cautionary instruction to the jury. Id.
Applying these standards, we have reviewed the record and find
no error in the admission of these charts and summaries.
Levy also challenges the court’s admission of
Government Exhibit 46 on the grounds that it contains
inadmissible hearsay and that she received it for the first time
at trial. However, these records were not hearsay but were
admissible as business records under Fed. R. Evid. 803(6) and
902(11). In addition, Levy did not object to the lack of notice
in the district court and therefore waived appellate review of
this claim. See Fed. R. Evid. 103; United States v. Parodi, 703
F.2d 768, 783 (4th Cir. 1983).
Finally, Levy objects to the admission of Government
Exhibit 31 on the ground that the emails from the customers were
hearsay and that their admission was highly prejudicial and
violated the spirit of the Confrontation Clause of the Sixth
Amendment and Crawford v. Washington, 541 U.S. 36 (2004).
However, these emails were not hearsay because they were not
offered for the truth of the matter asserted. Rather, they were
offered to place the admissions by Levy in her response emails
into context and to show Levy’s intent, lack of mistake, and
notice. The district court properly instructed the jury that
8
these emails were not offered for their truth. Therefore, the
admission of this exhibit did not violate the Confrontation
Clause. See id. at 59 n.9 (explaining that Confrontation Clause
does not bar use of testimonial statements for purposes other
than establishing truth of the matter asserted).
III.
Levy next contends that the district court
inadequately instructed the jury on the element of intent to
defraud. “‘The decision to give or not to give a jury
instruction is reviewed for an abuse of discretion.’” United
States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006) (quoting
United States v. Moye,
454 F.3d 390, 398 (4th Cir. 2006) (en
banc)). Furthermore, “‘[this court] review[s] a jury
instruction to determine whether, taken as a whole, the
instruction fairly states the controlling law.’”
Id. (quoting
Moye, 454 F.3d at 398).
While Levy argues that the district court’s
instruction to the jury was inadequate, Levy fails to specify in
what way the instruction misstated the controlling law. Levy
has thus failed to demonstrate that the district court abused
its discretion in instructing the jury on intent to defraud.
9
IV.
Levy argues that the district court erroneously
treated the Sentencing Guidelines as mandatory. Appellate
courts review a sentence imposed by a district court for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 128 S. Ct. 586, 597 (2007); United
States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). In so
doing, the court “first examines the sentence for significant
procedural errors,” including: “‘failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence . . . .’”
Pauley, 511 F.3d at 473 (quoting
Gall, 128 S. Ct. at 597). If
there are no procedural errors, the appellate court then
considers the substantive reasonableness of the sentence.
Gall,
128 S. Ct. at 597.
In sentencing Levy, the district court stated that it
was “bound by these [S]entencing [G]uidelines, except to the
extent that [it could] depart upwards or downwards in any given
case” and expressed that “[it did not] feel that [it could]
depart downwards in this case and [had] to be within the
[G]uideline range.” We agree that the district court treated
the Guidelines as mandatory and therefore vacate the sentence
10
and remand for resentencing. * See Covington v. United States,
129 S. Ct. 1612 (2009) (remanding for resentencing in light of
Nelson v. United States, 555 U.S. ___,
129 S. Ct. 890 (2009),
because the district court treated Guidelines as mandatory).
V.
Levy next contends that the district court erroneously
increased the applicable advisory Guidelines range based on
unreliable hearsay. Specifically, Levy argues that the
Government failed to provide reliable evidence of the number of
victims of Levy’s scheme and the amount of loss suffered by
those victims. This court reviews a district court’s factual
determination of the amount of loss for clear error. United
States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003). The court
need only make these determinations by a preponderance of the
evidence and “need only make a reasonable estimate of the loss,
given the available information.”
Id. (citing USSG § 2F1.1 cmt.
n.9 (2000)).
Here, Ryman testified to his methods for determining
the victims of Levy’s crimes. Ryman testified that he consulted
the victims listed on the IC3 website and confirmed their status
*
In so doing, we express no opinion on the reasonableness
of the sentence imposed by the district court.
11
as customers by searching through the email addresses found on
Levy’s computer. We conclude that the district court made a
reasonable estimate of the loss and determination of the number
of victims based on Ryman’s testimony.
VI.
Finally, Levy contends that the district court’s order
of restitution was unlawful because the Mandatory Victims
Restitution Act, 18 U.S.C. §§ 3663A-3664 (2006), does not
authorize the court to order a defendant to pay restitution to a
person who was not a victim of the offense. Levy argues that
the eighty-two individuals to whom restitution was ordered were
not victims within the Act.
This court reviews a restitution order for abuse of
discretion. United States v. Hoyle, 33 F.3d 415, 520 (4th Cir.
1994). Under § 3663A(a) and (c), the district court must order
that the defendant make restitution to the victim of an offense
committed by fraud. The term “victim” is defined in subsection
3663A(a)(2). We conclude the district court did not err in
finding that the eighty-two individuals to whom restitution was
ordered were “victims” as defined by the Act. Therefore, the
district court committed no error in ordering restitution to
those victims.
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VII.
In sum, we conclude that the district court committed
no error in its conduct of the trial but erred in treating the
Guidelines as mandatory in sentencing Levy. Accordingly, we
affirm Levy’s convictions, but vacate the sentence and remand
for resentencing. We also deny Levy’s renewed motion for
release pending appeal. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid in the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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