The opinion of the court was delivered by: Scheindlin, District Judge.
Defendant Scott Maurer is a 36 year old man who, up to the time
of the instant offenses, had no interaction with the criminal
justice system. In September 1998, he was found guilty of one
count of wire fraud following a jury trial. Thereafter, he pled
guilty to two subsequent indictments, one for forged endorsements
on Treasury checks and the other for bank fraud. At defendant's
request, the Court has agreed to consolidate these cases for
sentencing. These cases are summarized as follows:
1: 97 CR 1326-01 is a one-count indictment charging wire fraud.
Mr. Maurer was convicted of this charge following a trial in
which he was found guilty. The criminal conduct here occurred
between December 1995 and December 1996 and involved fictitious
invoices from his court reporting business to Interim Services,
Inc., an outside payee (the "Interim" case).
2: 98 CR 852-01 is a one-count indictment charging conspiracy
to pass Treasury checks bearing falsely made and forged
endorsements. Mr. Maurer pled guilty to this charge on December
17, 1998. The criminal conduct here occurred between January 1993
and June 1994 and involved the cashing of Mr. Maurer's deceased
grandfather's social security checks (the "Social Security"
3: 98 CR 1452-02 is a four-count information charging four
counts of bank fraud. Mr. Maurer pled guilty to these charges on
January 17, 1999. The criminal conduct here occurred between June
1994 and May 1995 and involved the submission of forged checks to
Chase Manhattan Bank and Fleet Bank (the "Forged Check" case).
All counts of conviction are grouped together pursuant to
United States Sentencing Guideline ("U.S.S.G." or the
"Guidelines") § 3D1.2(d), as the offense level is determined
largely on the basis of the total amount of loss. The applicable
guideline for these offenses is found at § 2F1.1(a), which
requires a base offense level of 6.
There are a number of disputes in this case, both as to (1)
offense level: specifically, the intended loss amount,
obstruction of justice and acceptance of responsibility; and (2)
departures: specifically, the government's motion for an upward
departure based on criminal history category, and the defendant's
motion for a downward departure based on community involvement
and family circumstances. I will address each of these issues
The amount of loss is in dispute with respect to the Interim
case. Before computing the amount of loss, it is first necessary
to describe the scheme to defraud employed by the defendant in
that case. Interim Services, Inc. ("Interim") and Westchester
Reporting Service ("Westchester")*fn2 entered into an agreement
whereby Interim would advance the payment of Westchester's court
reporting invoices for a fee. A simple example will serve to
explain how the agreement was supposed to work. Assume that
Westchester used an independent court reporter to take a
deposition. Assume further that the invoice to the law firm
client was $2,000. Interim would pay, for example, $1,000
directly to the court reporter,*fn3 and then forward 84% of the
gross profit to Westchester, here $840, known as the net profit.
It would retain, as its fee, 16% of the gross profit, here $160.
If the client failed to pay the $2,000 after 150 days,
Westchester would be required to pay back to Interim the entire
invoice amount of $2,000. This is known as a charge-back.
Here, the defendant submitted 332 fictitious invoices to
Interim for court reporting services allegedly performed by
AACR.*fn4 These invoices were fictitious in that there was no
client, nor was there a court reporting job. The total amount
that Interim would have paid on these invoices is $593,187,
namely the court reporter component of each invoice and the net
profit component of each invoice. The total face amount of the
invoices was $628,014.80. This number includes the 16% of the
gross profit on each invoice that Interim would retain for
It is undisputed that Interim did not "lose" all of the
$593,187 because some of that amount was "charged back" by
Interim. In addition, the defendant anonymously paid back some of
this amount to keep the scheme going. The question, then, is how
to calculate the actual loss or the intended loss, whichever is
greater, for the purpose of properly calculating the offense
The defendant argues that he should only be responsible for
that money which found its way into his pocket. Interim would cut
two separate checks — one to the fictitious court reporter and
one to Westchester for the net profit. The defendant cashed the
court reporter component, but the net profit component was put
into Westchester's business. He argues that he could not have
intended to steal the net profit amount paid to Westchester
because he knew that he could not get at that money. Defendant
further argues that because of the charge-back system, he could
not have intended to steal the full amount of the invoice. He
believes that he is entitled to credit for the amount of money
charged back by Interim and for any money he paid back to Interim
— namely $75,000.
Defendant's argument is flawed because it focuses on the amount
gained by the defendant rather than the amount lost by the
victim. He argues that because he could not get at the portion
paid to Westchester, it should not be included in the loss
amount. This is simply wrong. That
amount is part of the intended loss, ...