Friday, October 17, 2008

U.S. v. Armstead, No. 06-30550 (10-15-08). What about a new TV series called "Loss," where a group of defendants, marooned in federal court, have to confront mysterious numbers of victims as they await sentencing and try to gather restitution? Oh wait, the 9th has already come up with that idea in a series of cases, this being the latest. Defendant was convicted on numerous counts of bank fraud involving a scheme of false identifications and bogus accounts. The court even sent in a special verdict as to whether he was a "leader or organizer." He was. At sentencing, the court found witnesses credible as to loss. However, when it came to a number of victims, the court shrugged and said that there were a lot (more than fifty). Not good enough, held the 9th (Tashima joined by Reinhardt and McKeown). The victims who suffered loss, as in contributing to the calculations, included 13 banks and 9 named individuals. True there were others, and they suffered time loss by having to get new identifications (driver's licenses) and checking accounts, but there was no pecuniary loss. That is what drives the guidelines' calculations and adjustments. Here the adjustment was too high. So, the 9th followed its recent decision in Pham, 2008 WL 4307567 (9th Cir. Sept. 23, 2008), as well as the 2nd and 10th, and the 8th (sort of). As for reimbursement, short-lived loses do not seem to count (Pham as well as Yagar in the 6th Cir. and Connor in the 5th Cir.). Reimbursement is not a bar to "victim-hood" but it depends on the amount of time, and whether additional losses occurred. The 9th parted company with the 11th Cir. in Lee, which would count as victims those who were fully reimbursed, but whose losses were neither short-lived nor immediately covered without regard to whether the losses were included in the calculations for loss. In this case, the +4 adjustment was in error, and a resentencing was in order. The 9th also held that the sentence had to be adjusted for the state sentence on the same conduct, especially since the state conduct was counted in the loss calculation under 5G1.3(b)(1).


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