Filed: May 14, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5220 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALFREDO HOMES SUSI, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00119-FDW-DCK-4) Argued: March 25, 2010 Decided: May 14, 2010 Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and reman
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5220 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALFREDO HOMES SUSI, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00119-FDW-DCK-4) Argued: March 25, 2010 Decided: May 14, 2010 Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and remand..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5220
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALFREDO HOMES SUSI,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00119-FDW-DCK-4)
Argued: March 25, 2010 Decided: May 14, 2010
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
ARGUED: Michael David Gelety, Fort Lauderdale, Florida, for
Appellant. Ellen Ruth Meltzer, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Lanny A.
Breuer, Assistant Attorney General, Criminal Division, Patrick
M. Donley, Peter B. Loewenberg, Fraud Section, Criminal
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alfredo Homes Susi (“Susi”) appeals his conviction of one
count of conspiracy to defraud, in violation of 18 U.S.C. § 371,
and multiple counts of aiding and abetting wire fraud, in
violation of 18 U.S.C. § 1343, as well as his sentence. Susi
alleges insufficient evidence existed for his convictions,
prosecutorial misconduct, multiple errors at trial, and argues
that his sentence is unreasonable and should be vacated. For
the following reasons, we affirm all the convictions as
adjudicated by the district court, but vacate Susi’s sentence
and remand for resentencing.
I.
Susi’s convictions arise from his participation in a
telemarketing sweepstakes scheme that operated in Costa Rica. 1
The scheme consisted of the following pattern: first, the
“opener,” an employee at the call center, would call and inform
the victim that he had won second prize, usually several hundred
thousand dollars, in a sweepstakes. The telemarketer would
fraudulently represent himself as a federal agent of a non-
1
Approximately sixteen call centers in Costa Rica ran
similar schemes, as evidenced by a number of recent federal
prosecutions. See, e.g., United States v. Llamas, ___ F.3d ___,
2010 WL 963195 (4th Cir. 2010).
2
existent “United States Sweepstakes Security Commission,” or of
the “United States Sweepstakes Security Bureau,” or some similar
moniker. The opener would then tell the victim that, in order
to claim the prize, he must wire several thousand dollars via
Western Union to “Lloyds of London of Costa Rica” as an
insurance premium to insure delivery of the money. If the
victim was successfully persuaded to send money, a co-
conspirator known as a “loader” would call again and tell him
that a mistake had been made and that the victim had actually
won first prize, typically several million dollars. The loader
would tell the victim that, because the prize was larger, the
insurance fees would also be higher. The co-conspirators would
continue to call and “load” a victim for as long as the victim
continued to wire money. The sweepstakes concept was a pure
fraud and never existed so no prize money was ever paid to any
of the victims of the scheme.
The call center at issue in this case (hereinafter “the
Kalchstein call center”) was operated by Martin Kalchstein
(“Kalchstein”), a former business associate of Susi’s. Susi
began working at the call center in Costa Rica during May 2005
but left during October 2005 and returned to the United States.
Susi called victims, initially playing the part of an opener but
eventually working as a loader. Kalchstein testified during
trial that Susi earned between $50,000 and $60,000 in
3
commissions during his time working at the call center and
directly caused approximately $250,000 in losses to victims.
Kalchstein also testified that the call center as a whole took
in about $40,000 per week and approximately $2.5 to $3 million
total during its total operating history.
The jury returned a verdict convicting Susi on all counts,
and also rendered a forfeiture verdict of approximately
$1,885,000. 2
The Presentence Investigation Report (“PIR”) determined
that the actual loss attributable to the Kalchstein call center
during Susi’s time working there was approximately $760,000.
This figure was calculated by multiplying Kalchstein’s
estimation that the call center took in an average of $40,000
per week by the amount of time Susi was on site—roughly 19
weeks. The PIR estimates that the total loss for all sixteen
Costa Rican call centers utilizing similar schemes was $4.2
million, which included the Kalchstein call center.
During Susi’s sentencing hearing, the defense withdrew its
objections to the advisory Guidelines range of 168 to 210
months’ imprisonment, and instead argued for a variance based on
2
Susi and his co-conspirators were prosecuted in the
Western District of North Carolina because Western Union, the
wire service they used to facilitate the fraud scheme, processed
funds through Charlotte, North Carolina.
4
Susi’s purportedly limited role in the conspiracy. Susi’s
brother, Sam Susi (“Sam”), testified for the defense at the
hearing. Sam attempted to show that Susi’s involvement in the
conspiracy was relatively limited and that he was being treated
differently from other similarly-situated defendants because
their sentences had been based on the amount of loss directly
attributable to them, and not on the amount of loss caused by
the conspiracy as a whole.
The district court imposed a within Guidelines sentence of
180 months’ imprisonment for each count of aiding and abetting
wire fraud, to run concurrently with each other, and an
additional concurrent sentence of 60 months’ imprisonment for
conspiracy to defraud. The district court entered a separate
order of restitution of $4.2 million. This Court has
jurisdiction over Susi’s appeal pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a).
II.
A.
Susi first argues that the district court erred by denying
his motion for judgment of acquittal. Although he made the
5
motion in district court on general grounds, 3 he makes an
insufficiency of the evidence argument on appeal. Specifically,
Susi contends that “the government had not proven one overall
conspiracy.” (Appellant’s Br. 16-17). Susi’s argument here is
confusing but we interpret it to mean that, although he concedes
that the evidence was sufficient to prove his involvement in the
Kalchstein center conspiracy, Susi argues that the evidence was
insufficient to prove the existence of a larger conspiracy
consisting of other call centers. Moreover, Susi argues that he
“withdrew from any arguable and limited conspiracy . . . with
the raid of the call center coming eight (8) months after Susi
left . . . .” (Appellant’s Br. 21).
In reviewing the sufficiency of the evidence we must
determine whether, viewing the evidence in the light most
favorable to the government, any rational trier of fact could
find the essential elements of the crime beyond a reasonable
doubt. Glasser v. United States, 315 U.S. 60, 80 (1942). This
court will uphold the jury’s verdict if there is substantial
evidence to support it. United States v. Beidler,
110 F.3d 1064,
3
In his brief, Susi contends that he moved for acquittal
based on insufficiency of the evidence. However, Susi only made
a general motion for acquittal, simply stating that “I found
various defects in the government’s case.” (J.A. 229). In fact,
the district court asked defense counsel whether they were
“going to make argument as to” the motion, and defense counsel
answered “No.” (S.J.A. 41).
6
1067 (4th Cir. 1997). Because Susi moved for acquittal only on
general grounds, we review for plain error. See United States v.
Olano, 507 U.S. 725, 732-34 (1993).
Susi’s argument that he was charged with an overall
conspiracy involving call centers beyond the Kalchstein call
center is based on a misreading of the record. Contrary to
Susi’s contentions on appeal, the indictment charges Susi only
with being a member of the Kalchstein call center conspiracy.
The evidence presented at trial was limited to proving that Susi
was a member of the Kalchstein call center conspiracy. Although
other call centers operating in Costa Rica were briefly
mentioned during trial, there were no details elicited from
witnesses as to the other call centers. 4 Because Susi concedes
that the evidence was sufficient to prove his involvement with
the Kalchstein call center conspiracy, his insufficiency of the
evidence claim clearly fails.
Susi’s argument that he withdrew from the conspiracy is
also without merit. Withdrawal from a conspiracy “requires the
defendant to take affirmative actions inconsistent with the
object of the conspiracy and communicate his intent to withdraw
4
In fact, after Special Agent Vernon Roberson (“Roberson”)
mentioned the other “16 locations,” the prosecution redirected
Roberson’s focus to the “call center that was associated with
Mr. Kalchstein and Mr. Susi.” (J.A. 51).
7
in a manner likely to reach his accomplices.” United States v.
Cardwell, 433 F.3d 378, 391 (4th Cir. 2005). “A mere cessation
of activity in furtherance of the conspiracy is insufficient.”
United States v. Walker,
796 F.2d 43, 49 (4th Cir. 1986).
Instead, “a defendant must provide evidence that he acted to
defeat or disavow the purposes of the conspiracy.” United States
v. Barsanti,
943 F.2d 428, 437 (4th Cir. 1991).
Susi made no such showing. Although Allen Fialkoff
(“Fialkoff”), a co-conspirator, testified that Susi told him
that he planned to quit working at the call center because Susi
thought it “wasn’t the right thing to do,” (J.A. 143), this
conversation took place prior to the time Susi actually left the
call center, and there is no evidence that he communicated this
sentiment to anyone else. Instead, Susi did not “indicate that
he was going to take any steps to make right what he had done,”
(J.A. 95), and one day “he just didn’t come in.” (J.A. 107).
Consequently, there is substantial evidence to support the
jury’s conclusion that Susi did not withdraw from the
conspiracy.
B.
Susi next argues that “[t]hroughout the course of the
trial, the prosecutor engaged in a pattern of prejudicial
8
misconduct, the cumulative effect of which destroyed” Susi’s
right to a fair trial. (Appellant’s Br. 26).
As to an allegation of prosecutorial misconduct, this Court
reviews a district court’s factual findings for clear error and
its legal determinations de novo. United States v. Washington,
398 F.3d 306, 310 (4th Cir. 2005). In determining whether
prosecutorial misconduct occurred, this Court first evaluates
whether the prosecutor’s remarks or conduct were improper.
United States v. Wilson,
135 F.3d 291, 297 (4th Cir. 1998).
However, if this Court finds that the remarks were improper, the
conduct “do[es] not always mandate retrial. The relevant
question is whether the prosecutors’ comments so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.” United States v. Mitchell,
1 F.3d 235,
240 (4th Cir. 1993) (quotation omitted).
In evaluating whether the defendant was prejudiced, this
Court considers the following factors:
(1) the degree to which the prosecutor’s remarks had a
tendency to mislead the jury and to prejudice the
defendant; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the defendant; (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters; (5) whether the
prosecutor’s remarks were invited by improper conduct
of defense counsel; and (6) whether curative
instructions were given to the jury.
9
United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002).
1.
Susi first objects to certain comments made by the
prosecutor during closing argument. Specifically, Susi objects
to remarks to the effect that the crime was particularly
heinous, that Susi was of bad character, and that the victims
were elderly and vulnerable.
Susi’s argument that the prosecutor improperly commented on
the victims’ age or vulnerability is without merit. The
prosecutor questioned the elderly witnesses about their age, the
origin of the money they sent to the call centers, and their
testimony that losing the money created hardships for them.
These lines of questioning were relevant and proper. Thus, the
district court correctly held that “it is relevant questioning
to show that the nature of this conspiracy is to find a person
with liquidity, good credit, and hit[] them daily with an
additional requirement of funds . . . .” (J.A. 182).
There is also no evidence that the prosecutor’s statements
that, for example, the crime was “horrific,” or that Susi was a
“greedy, merciless man,” crossed the line of vigorous advocacy.
This Court has held that “prosecutors enjoy considerable
latitude in presenting arguments to a jury, because ‘the
adversary system permits the prosecutor to ‘prosecute with
10
earnestness and vigor.’’” Bates v. Lee, 308 F.3d 411, 422 (4th
Cir. 2002) (quoting United States v. Young,
470 U.S. 1, 7
(1985)). Consequently, “[c]ommitted advocates do not always
present antiseptic closing statements, and the jury is entrusted
within reason to resolve such heated clashes of competing
views.”
Id.
Furthermore, even assuming arguendo that the prosecutor’s
remarks were improper, there is no evidence that the comments
“so infected the trial with unfairness as to make the resulting
conviction a denial of due process.”
Mitchell, 1 F.3d at 240
(quotation omitted). The comments were relatively isolated, and
the district court gave a curative instruction to the jury to
“disregard” the prosecutor’s comment as to Susi’s character. See
Scheetz, 293 F.3d at 186.
2.
Second, Susi alleges that the prosecutor committed a so-
called “Golden Rule” violation 5 during closing, asking “the jury
5
When counsel argues the “Golden Rule,” they argue that
“the jurors should put themselves in the shoes of the plaintiff
and do unto him as they would have him do unto them under
similar circumstances. Such an argument is universally
recognized as improper because it encourages the jury to depart
from neutrality and to decide the case on the basis of personal
interest and bias rather than on the evidence.” Ivy v. Security
Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir. 1977); Ins. Co.
of N. Am., Inc. v. U.S. Gypsum Co.,
870 F.2d 148, 154 (4th Cir.
(Continued)
11
to put themselves into the position of the victims.”
(Appellant’s Br. 29). Specifically, Susi objects to the
prosecutor’s statement that “we all may think that you’d never
have fallen for this scheme. First of all, none of us are going
to know what we’re like at a later, older age.” (J.A. 207).
However, this remark does not clearly violate the Golden
Rule. The prosecutor did not improperly appeal to the jurors’
sympathy, nor did he ask the jury to make a decision as if they
were in the victims’ position. Instead, the statement called
for the jurors to decide whether the witnesses’ testimony was
plausible based on context. See United States v. Kirvan, 997
F.2d 963, 964 (1st Cir. 1993) (“[T]he invitation is not an
improper appeal to the jury to base its decision on sympathy for
the victim but rather a means of asking the jury to reconstruct
the situation in order to decide whether a witness’ testimony is
plausible.”).
Moreover, Susi has not carried his burden of showing that
the remarks, even if improper, “prejudicially affected [his]
substantial rights so as to deprive [him] of a fair trial.”
Mitchell, 1 F.3d at 240 (quotation omitted). The district court
gave a curative instruction to the jury, reminding them that
1989) (“The law is clear that . . . it is improper to ask jurors
to place themselves in the position of a party.”).
12
“their duty is to determine the truth of this matter; and they
determine the truth of this matter by making a decision based
exclusively on the evidence.” (J.A. 213).
3.
Finally, Susi objects to the prosecutor’s call to the jury
to “send a message” to the community. (See J.A. 210). Even if
we assume the remark to have been improper, it was not unduly
prejudicial. Not only did the district court give the general
curative instruction mentioned above, but the court also
specifically reminded the jury that “[y]our duty is not to be
sending deterrent signals. Deterrence issues are matters for
the Court.” (J.A. 213). Thus, even if the comment were
improper, “[t]he slight prejudice suffered by [Susi] was most
assuredly cured by the district court’s . . . curative
instruction.” Scheetz, 293 F.3d at 186.
C.
Susi next contends that the cumulative effect of certain
evidentiary rulings by the trial court denied him a fair trial.
Specifically, Susi alleges that the district court erred when it
denied the defense motion for mistrial “after there was improper
and prejudicial contact with jurors by a member of the
prosecution’s staff,” (Appellant’s Br. 38), and because
13
prosecution witness Kalchstein “made direct and prejudicial
comments on Appellant Susi’s right to remain silent.”
(Appellant’s Br. 40).
This Court reviews evidentiary rulings and denials of a
motion for mistrial for an abuse of discretion. United States v.
Bostian, 59 F.3d 474, 480 (4th Cir. 1995).
Pursuant to the cumulative error doctrine, the
cumulative effect of two or more individually harmless
errors has the potential to prejudice a defendant to
the same extent as a single reversible error. . . . To
satisfy this requirement, such errors must so fatally
infect the trial that they violated the trial’s
fundamental fairness.
United States v. Basham, 561 F.3d 302, 330 (4th Cir. 2009)
(internal quotations and citations omitted).
1.
Susi alleges that, during trial, Ms. Bachman (“Bachman”),
who was “working with the U.S. Attorney’s Office contacted or
spoke to one of the jurors,” specifically, Alternate Juror 1.
(J.A. 215; 220). Upon investigation by the district court,
Bachman denied having contact with a juror and instead stated
that the entirety of her conversation during the sidebar at
issue was with a “court security officer [who] was moving my
bags off of the chair and I apologized to him for putting it on
the wrong chair. He informed me that his chair was squeaking. .
14
. . That was the entire extent of my conversation during
sidebar.” (J.A. 225).
The district court found that
Mr. Susi did, in fact, hear something, but he
misunderstood what he heard.
There’s consistent testimony, or rather
consistent proffers from the court security officer,
Ms. Bachman and Alternate 1 that there was a brief,
kind of a friendly exchange between Ms. Bachman and
the court security officer about the squeaky chair.
And Alternate 1 did hear the reference to the “squeaky
chair” and apparently turned around, or made some
passing comment to the court security officer having
to fix the squeaky chair.
. . . .
So I do not believe that [there] was any
inappropriate contact with Alternate 1.
(J.A. 228-29).
In evaluating allegations of extrajudicial juror contact,
this Court conducts the following analysis:
First, “[t]he party who is attacking the verdict bears
the initial burden of introducing competent evidence
that the extrajudicial communications or contacts were
more than innocuous interventions.” Second, upon
satisfaction of this “minimal standard . . ., the
[presumption of prejudice] is triggered
automatically.” And, “[t]he burden then shifts to the
prevailing party to prove that there exists no
‘reasonable possibility that the jury’s verdict was
influenced by an improper communication.’”
Basham, 561 F.3d at 319 (quoting United States v. Cheek,
94 F.3d
136, 141 (4th Cir. 1996)) (internal citations omitted). In
determining whether contact was innocuous, this Court considers
the following factors: “(1) any private communication; (2) any
private contact; (3) any tampering; (4) directly or indirectly
15
with a juror during trial; (5) about the matter before the
jury.” Cheek, 94 F.3d at 141.
Susi has not carried his initial burden of “introducing
competent evidence that the extrajudicial communications or
contacts were more than innocuous interventions.” Id. at 141
(internal quotation omitted). First, the district court did not
abuse its discretion by finding that Bachman did not actually
have extrajudicial contact with a juror. Alternatively, even
assuming that Bachman did speak with the alternate juror, the
communication would have been innocuous. There is no evidence
that any communication, if it occurred, was “about the matter
before the jury,”
id., and the alternate juror did not
ultimately participate in deliberations. Consequently, the
district court did not abuse its discretion in finding that
there has been “no impropriety arising out of that instance in
this trial.” (J.A. 229).
2.
Susi argues that Kalchstein, a government witness,
inappropriately made “direct and prejudicial comments on
Appellant Susi’s right to remain silent.” (Appellant’s Br. 40).
Susi contends that Kalchstein’s statement that other co-
conspirators like Dunkan and Burkes “lied, and . . . ended up in
jail with a much stiffer penalty for lying,” (J.A. 95-96) was “a
16
clear comment on the non-testifying Susi’s exercise of his Right
to Silence.” (Appellant’s Br. 40). Second, Susi argues that the
following exchange was also an improper comment on his decision
not to testify:
Q: You were asked by Mr. Young: Where he comes from in
Texas, a thief is also a liar?
A: I guess he’d say the same about his client then if
I was his client and he was on the witness stand –-
(J.A. 111). Because defense counsel did not object to this
testimony during trial on due process grounds, we review for
plain error. Olano, 507 U.S. at 732-34.
Susi’s due process rights were not violated by Kalchstein’s
testimony. While it is true that “[t]he Constitution . . .
‘forbids either comment by the prosecution on the accused’s
silence or instructions by the court that such silence is
evidence of guilt,’” United States v. Francis, 82 F.3d 77, 78
(4th Cir. 1996) (quoting Griffin v. California,
380 U.S. 609,
615 (1965)), the statements to which Susi objects were not made
by the prosecutor, nor were they directly prompted by
prosecutorial questioning. Moreover, the testimony at issue
clearly was not “of such character that the jury would naturally
and necessarily take it to be a comment on the failure of the
accused to testify.” United States v. Anderson,
481 F.2d 685,
701 (4th Cir. 1973) (quotation omitted). Instead, Kalchstein
17
was merely explaining his own reasons for testifying honestly
and emphasizing that he was telling the truth.
Consequently, because “none of the individual rulings work
any cognizable harm, it necessarily follows that the cumulative
error doctrine finds no foothold.” Basham, 561 F.3d at 330
(quotation omitted).
D.
Finally, Susi contends that the district court abused its
discretion “in imposing a sentence on the defendant that was
unfounded, unsupported and unreasonable.” (Appellant’s Br. 42).
Susi argues that, “although no-one ever mentioned loss figures
up to $2 mililion [sic], Judge Whitney spoke of a loss of $4.2
million for which Susi was responsible, as an attempt to justify
the wildly divergent sentence imposed.” (Appellant’s Br. 49).
Susi contends that this was because he “was confused with other
defendants that the Judge had seen while also being lumped among
those unrelated defendants for purposes of increasing loss
calculations and, ultimately, for the purpose of imposing one of
the harshest sentences on one of the least culpable
telemarketers.” (Appellant’s Br. 50).
This Court reviews a sentence for reasonableness, applying
an abuse of discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007); see also United States v. Pauley,
511 F.3d
18
468, 473 (4th Cir. 2007). The appellate court first must ensure
that the trial court did not commit any procedural error, such
as
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] §
3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any
deviation from the Guidelines range.
Gall, 552 U.S. at 51. If the Court finds the sentence to be
procedurally sound, it then considers the substantive
reasonableness of the sentence, taking into consideration the
totality of the circumstances.
Id.
We conclude the district court did make a significant
procedural error because Susi’s sentence was based, in part, on
a material and clearly erroneous factual finding as to the loss
attributable to Susi. The district court found that
[w]e have approximately $4.2 million in claims
collected by the U.S. Probation Office and the U.S.
Government at that time. Those are actual claims. We
don’t know that -– we haven’t totaled up the exact
number, the U.S. Probation Office has not for the
Court, but the estimate right now from the Probation
Office is 4.2 million.
(J.A. 396). Although the district court recognized that Susi
was “working at one call center and [he was] directly
responsible for a small portion of that,” the district court
also noted that “[i]t’s hard for [Susi] to have been involved in
hundreds of thousands of dollars of fraud without understanding
19
the scope of this fraud involved millions and millions of
dollars.” (J.A. 396) (emphasis added).
It was clearly erroneous for the district court to find
that the scope of the loss attributable to “this fraud” was $4.2
million. The $4.2 million figure represents the losses
attributable to all sixteen Costa Rican call centers, but as the
Government concedes, “the indictment and proof in this case were
limited almost exclusively to Kalchstein’s call center.”
(Appellee’s Br. 17). The record simply does not support a loss
finding of $4.2 million as to Susi based on all the Costa Rican
schemes when Susi can only be properly charged with the acts of
the Kalchstein call center.
Therefore, the district court abused its discretion by
basing Susi’s sentence on the clearly erroneous understanding
that the fraud of which Susi was convicted resulted in $4.2
million in losses. This is true notwithstanding the fact that
the sentence was within the properly calculated advisory
Guidelines range, to which Susi withdrew his objections.
Because the sentence was procedurally unreasonable, we do not
consider substantive reasonableness and end our analysis here as
the case must be remanded for resentencing. See United States v.
Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010) (“Only if we
conclude that the district court committed no significant
procedural error . . . may we move on to the second step of
20
considering the substantive reasonableness of [the] sentence . .
. .”).
It also follows that the district court abused its
discretion by ordering that Susi pay $4.2 million in
restitution. 6 This Court’s recent decision in a related case,
Llamas, ___ F.3d ___, 2010 WL 963195 (4th Cir. 2010), is
instructive:
In pertinent part, the Mandatory Victims
Restitution Act of 1996 (the “MVRA”) directs a
sentencing court, when sentencing a defendant
convicted of an offense involving, inter alia, fraud
or deceit, to order “that the defendant make
restitution to the victim of the offense.” 18 U.S.C.
§ 3663A(a)(1). Because the MVRA focuses on the
offense of conviction rather than on relevant conduct,
“the focus of [a sentencing] court in applying the
MVRA must be on the losses to the victim caused by the
offense.” United States v. Newsome, 322 F.3d 328, 341
(4th Cir. 2003) (emphasis added). Thus, in the
context of a conspiracy, a restitution award under the
MVRA is limited to the losses attributable to the
specific conspiracy offenses for which the defendant
was convicted. See id.
At the sentencing hearing, investigators
testified that the Kearns Call Center caused
approximately $1.7 million in losses between March
2004 and April 2006. Yet, in applying the MVRA, the
6
We note that Susi raised the issue on appeal in terms of
“imposing a sentence . . . that was unfounded, unsupported and
unreasonable.” (Appellant’s Br. 42) (emphasis added). Although
Susi may have been remiss in not specifically arguing that the
restitution order, as well as the order of imprisonment, was in
error, we nonetheless consider both on appeal because
“restitution is . . . part of the criminal defendant’s
sentence,” United States v. Cohen, 459 F.3d 490, 496 (4th Cir.
2006), as it “is fundamentally ‘penal’ in nature.” United States
v. Bruchey,
810 F.2d 456, 461 (4th Cir. 1987).
21
district court ordered Llamas to make restitution of
more than $4.2 million, concluding that he was jointly
and severally liable for losses caused not only by the
Center, but also by other Costa Rican call centers
utilizing similar sweepstakes schemes. See J.A. 468
(“All those that were involved in any call center are
subject, under the [MVRA], [to] the same joint and
several liability.”). Because the restitution order
was not limited to losses attributable to the Center,
the Government has properly recognized — and conceded
— the legal error underlying the restitution order.
Llamas, at *7. Like Llamas, Susi was charged with and convicted
of participating in a conspiracy involving only one call center,
and not of a conspiracy involving all sixteen Costa Rican call
centers. Thus the restitution order in this case should also
have been “limited to the losses attributable” to the Kalchstein
call center conspiracy. 7
III.
For the foregoing reasons, we hold that the district court
did not err in denying Susi’s motion for acquittal, committed no
cumulative evidentiary error, and no prosecutorial misconduct
occurred. Therefore, we affirm Susi’s convictions. However, we
7
Although government counsel, who also handled the Llamas
case, conceded error as to the restitution order in Llamas, they
did not make that concession here. During oral argument the
government explained that this distinction was based on its
belief that Susi failed to raise the restitution issue on
appeal. However, the government did concede that Susi’s
situation was factually the same as Llamas’ as to the
restitution order and we concluded Susi did sufficiently raise
the restitution issue.
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vacate Susi’s sentence, including the order of restitution, and
remand the case for resentencing consistent with this opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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