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U.S. v. ARNJAS

United States District Court, Southern District of New York


September 8, 2003

UNITED STATES OF AMERICA, -AGAINST- MARIJA ARNJAS, DEFENDANT

The opinion of the court was delivered by: Robert Sweet, Senior District Judge

SENTENCING OPINION

On February 4, 2003, Marija Arnjas, a/k/a/ Marija Melih, a/k/a Maria Melih ("Arnjas"), pled guilty to one count of uttering a forged security, in violation of 18 U.S.C. § 513 (a), and one count of failure to appear, in violation of 18 U.S.C. § 3146(a)(1).

The Offenses Conduct

The investigation into the instant offense was conducted by agents of the U.S. Secret Service.

Arnjas was employed by Hurricane Entertainment Corp. as a bookkeeper in their Manhattan office between June 1998 and November 2000. As part of her duties in the office, Arnjas had ciccess to the company's checkbook. [ Page 2]

During the period of July 1599 through October 2000, six checks totaling $210,025.23 were made out" in the name of BTL Production Service, Inc., one of Hurricane's regular vendors, which has its offices in California. Although the checks had been negotiated, the checks were never actually received by BTL. Although it was Hurricane's policy to require officer approval for any check over $5,000, no approval for these checks had ever been sought or obtained.

Bank records revealed that each of the six checks had been deposited into an account at Nationsbank, now known as Bank of America. That account had been opened at an Orlando, Florida branch of Nationsbank in the name of BTL Production Services, Inc., a name identical to that of the real BTL except for the addition of an us" at the end of the word "Service." An Orlando address was listed on the false BTL account.

A review of Florida corporate filings by the case agent indicated that the false BTL was incorporated in December 1999. The registered agent for the corporation was listed as "Marija Melih," and the incorporation papers were signed by "Maria Melih."

Bank records show that the person who deposited one of the six checks had used a New York State driver's license as identification. New York State Department of Motor Vehicles records showed that the driver's license number was assigned to [ Page 3]

Arnjas Bank records also indicated that various transactions linked the false BTL account with other Nationsbank accounts. The first such account was held in the name of First Services Travel, with "Maria Melih" as the contact person. Two addresses were listed on this account during the relevant period, one which was the same Orlando address as on the false BTL account, and one in Pompano Beach, Florida. A second pair of accounts in the name of "Marija Melih" was also found, also under the Pompano Beach address.

Bank records also revealed that the false BTL account was opened with a $100 transfer from the First Services Travel Account. Three transfers totaling $61,000 were made from the false BTL account to the First Services Travel account. Two transfers totaling $46,858 were made from the false BTL account to the Marija Melih accounts.

On January 4, 2000, there was both a withdrawal by debit card from the false BTL account and a balance inquiry for the Marija Melih accounts at the same ATM at Chelsea Piers in Manhattan. On February 26, 2000, there was a withdrawal from both the false BTL account and the Maria Melih account from the same ATM in Harrison, New York. Bank records also showed that there were numerous withdrawals by debit card made from the false BTL account ctt ATM machines located at various locations in WestChester County, New York. The case agent noted that the defendant lived nearby [ Page 4]

these locations, in Rye Brook, New York.

On August 1, 2002, an arrest warrant was issued for Arnjas. She was arrested on August 6, 2002. Arnjas was release on that date on $100,000 PRB, signed by her husband, and secured by $5,000 cash. Arnjas's travel limits were restricted to the Southern and Eastern Districts of New York, and she was ordered to surrender all travel documents. Arnjas was also placed on regular pretrial supervision.

On August 16, 2002, a bench warrant was issued for the defendant's arrest due to her failure to report to the Pretrial Services Office as directed. Arnjas also failed to appear for her scheduled preliminary hearing on September 5, 2002, or at any time thereafter.

On September 28, 2002, Arnjas was arrested for an unrelated offense in the Northern District of California. The outstanding bench warrant from the Southern District of New York was subsequently discovered. Arnjas was later returned to the Southern District of New York on October 18, 2002.

Victim Impact

According to Hurricane, their losses totaled $210,025.23. There were five transfers of funds made from accounts controlled by [ Page 5]

Arrjas totaling approximately $107,858. Both the government and Arnjas have stipulated that Arnjas caused losses of more than $120,00), but less than $200,000.

The government's loss figure is based on Arnjas' assertion that some of the funds she took were used for legitimate business on behalf of Hurricane. However, according to the presidert: of the company, Robert Young, none of the funds diverted by Arnjcis were used on behalf of the business. Young provided documentc.tion which shows that as a result of Arnjas' fraudulent accounting methods, in regard to one television show produced by the compel:ly, Hurricane believed that they had completed the program under budget, when in fact they were well over budget in excess of $200,000. An audit conducted by Hurricane later uncovered that approximately $129,876.33 in bills had gone unpaid.

After the theft was discovered, Young ordered a forensic audit of Hurricane which uncovered the $210,253.23 loss to Hurricane. As a result of the theft, and in addition to the monetary loss, Hurricane spent $20,000 in auditing fees and spent three years attempting to track down and recover the stolen funds. The funds were never recovered.

Hurricane was required to reissue a check in the amount of $44,000 to BTL, and spent an additional $25,000 in legal bills. Arnjas' theft caused great hardship on the company. Hurricane [ Page 6]

assumed all of the overages on one of its television shows, and paid all of the outstanding bills from their internal budget. Hurricane's reputation with Paramount Pictures was greatly damaged, and Hurricane is still paying off the bills that Arnjas caused them to have.

For sentencing purposes, the Court will employ the loss figure stipulated to by Arnjas and the government: more than $120,000 and less than $200,000.

Adjustment for Obstruction of Justice

The defendant willfully failed to appear, as ordered, for a judicial proceeding in the Southern District of New York and she remained a fugitive until her rearrest in the Northern District of California for an unrelated offense. Therefore, defendant willfully obstructed or impeded, or attempted to obstruct or impede the administration of justice during the course of the prosecution of the offense, and the obstructive conduct related to the offense of conviction.

Adjustment for Acceptance of Responsibility

During the presentence interview, defense counsel indicated that the defendant's plea allocution would stand as her statement of the offense. Arnjas has stated that she regrets [ Page 7]

becoming involved in this *Incident* and said she started out with good intentions.

The Guidelines

Offense Level

The April 30, 2003 edition of the Guidelines Manual has been used in accordance with § 1B1.11(b)(1).

Counts 1 and 2 are grouped, pursuant to § 3D1.2(c). The Base Offense Level for a violation of 18 U.S.C. § 513 (a) is six, pursuant to § 2B1.1(a).

Because the government and the defense stipulated to a loss from the offense of between $120,000 and $200,000, ten levels are added, to 16, pursuant to § 2B1.1(b)(1)(F).

There are no victim-related adjustments or adjustments for role in the offense.

Two levels are added, to 18, pursuant to § 3C1.1 for obstruction of justice, because Arnjas willfully failed to appear, as ordered, for a scheduled preliminary hearing which was scheduled in the Southern District of New York on September 5, 2002, and Arnjas remained a fugitive until her rearrest in the Northern [ Page 8]

District of California for an unrelated offense. At the time of her rearrest, she had been stopped by a police officer for a traffic incident and provided the officer with a false name in an attempt to avoid being, linked to the outstanding warrant.

No reduction for acceptance of responsibility is warranted. Although Arnjas has pleaded guilty as charged, Arnjas failed to abide by the bail conditions set by the Court, including reporting as directed to the Pretrial Services Office for supervision. Further, the defendant obstructed justice by willfully failing to appear for a scheduled judicial hearing. Application Note 4 to Section 3E1.1 indicates that "[c]onduct resulting in an enhancement under § 3C1.1 [for obstruction of justice] ordinarily indicates that the defendant has not accepted responsibility for [her] criminal conduct." While the Note provides that in "extraordinary" cases both adjustments may apply, in this case a reduction for acceptance of responsibility is not warranted.

Total Offense Level

Arnjas' total offense level is 18 under the Guidelines. [ Page 9]

Criminal History Category

Arnjas was represented by counsel in all matters resulting in conviction.

On June 3, 1998, Arnjas was arrested and charged with forgery in the second degree. She pleaded guilty and received five years probation and restitution. Pursuant to §§ 4A1.2(e)(2) and 4Al.l(c), that qualifies for one criminal history point. At the time Arnjas committed the instant offense, she was on probation. Pursuant to § 4Al.l(d), two criminal history points are added, for a total of three. Arnjas therefore falls into Criminal History Category II.

Applicable Guidelines Range

The statutes under which Arnjas pleaded guilty provide for a maximum sentence of ten years, pursuant to 18 U.S.C. § 513(a), and five years, which must be consecutive to the sentence of imprisonment imposed for any other offense, pursuant to 18 U.S.C. § 3146. Based on a total offense level of 18 and a Criminal History category of II, the Guidelines range for imprisonment: is 30 to 37 months.

The guideline range for a term of supervised release is at; least two years but not more than three years, pursuant to § [ Page 10]

5D1.2 (a)(2). The terms of supervised for release for the two counts run concurrently, pursuant to 18 U.S.C. § 3624 (e). Supervised release is required for a term of imprisonment of more than one year or when required by statute, pursuant to § 5D1.1(a).

Arnjas is not eligible for probation, pursuant to § 5B1.1, Application Note #2, because the applicable guideline range is in Zone D of the Sentencing Table.

Full restitution to the victim, Hurricane Entertainment Corporation, is required under 18 U.S.C. § 3663A and 18 U.S.C. § 3664.

A special assessment fee is mandatory, pursuant to 18 U.S.C. § 3013.

The Scmtence

In light of the foregoing, Arnjas shall be sentenced to 30 months on each count, to run concurrently, followed by three years supervised release on each count, to run concurrently. Arnjas is to report to the nearest Probation Office within 72 hours of release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Arnjas shall (1) abide by the standard terms of supervised release (1-13); (2) not commit another federal, state or local crime; (3) [ Page 11]

not illegibley possess a controlled substance; and (4) not possess a firearn or destructive device. The mandatory drug testing condition is suspended based on the Court's determination that the defendant poses a low risk of future substance abuse.

In addition, the following special conditions will be imposed. Arujas shall provide the probation officer with access to any requested financial information. Further, Arnjas shall not incur new credit charges or open additional lines of credit without the approval of the probation officer unless the defendant is in compliance wish the installment payment schedule. The defendant shall notify t he United States Attorney within 72 hours of release from custody.

A special assessment fee of $200 is due immediately. It is further ordered that the defendant make restitution payable to the Clerk, U.S. District Court, for disbursement to Hurricane Entertainment i::i the amount of $210,025.23. The restitution shall be paid in ful 1. immediately from any proceeds received by the defendant from the sale of properties under her and/or her husband's control. The defendant shall notify the United States Attorney for thi3 district within 30 days of any change of mailing or residence a Idress that occurs while any portion of the restitution remains unpaid.

If the defendant is engaged in a BOP non-UNICOR work [ Page 12]

prosius, the defendant shall pay $25 per quarter toward the [ILLEGIBLE] financial penalties. However, if the defendant partcipates in the BOP's UNI COR program as a grade one 1 through 4, the defendant shall pay 50 percent of her monthly UNICOR earnii gs toward the criminal financial penalties, consistent with BOP regulation 20 C.F.R. § 545.11.

This sentence is subject to modification at the sentencing hearing now set for September 11, 2003.

It is so ordered.

20030908

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