United States District Court, S.D. New York
June 4, 2004.
UNITED STATES OF AMERICA, -against- BERYL BARCLAY, Defendant
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
On January 29, 2004, the defendant Beryl Barclay ("Barclay") was
convicted of one count of Conspiracy to Commit Bank Fraud in violation of
18 U.S.C. § 371 and one count of Bank Fraud, in violation of
18 U.S.C. § 1344 after a jury trial.
The Offense Conduct
This statement of facts draws on the Presentence Investigation Report
prepared by the U.S. Probation Office.
In January 2002, a Postal Inspector with the United States Postal
Inspection Service and other postal inspectors spoke with an investigator
at J.P. Morgan Chase ("Chase") who informed inspectors of the following: On December 31, 2001, a check in the amount of $117,038 dated December
14, 2001 (the "12/14 Check") was deposited into an account at Chase in
the name of "Omjavi Corp" (the "Omjavi Account"). The payor of the 12/14
Check was an insurance company located in New York, New York. In the
payee section of the 12/14 Check, the name "Omjavi Corp." appeared, with
a Brooklyn address. A representative of the insurance company informed
the Investigator that "Omjavi Corp." was not the intended payee of the
12/14 Check, and that the information in the payee section of that check
had been altered.
On October 12, 2001, a United States Treasury check issued out of
Denver, Colorado, in the amount of $103,575, and dated September 20, 2001
(the "9/20 Check") was deposited into the Omjavi Account. In the payee
section of the 9/20 Check, the following appeared in typeface on the top
line: "Omjavi Corp. C/O." Below that, the following appeared in a visibly
different typeface: "NYS Income Tax, Processing Unit, PO Box 3967, New
York, N.Y. 10008-3967." A representative of the accounting office of the
United States Government that issued the 9/20 Check, confirmed that
"Omjavi Corp." was not the intended payee of that check, and that the
information in the payee section of that check was altered.
The Omjavi Account was opened on October 5, 2001, at a Chase branch in
Manhattan with a business signature card in the name of "Omjavi, Inc."
Barclay was listed on the business signature card as the president of "Omjavi, Inc." Her signature also
appeared on the business signature card. Another individual was listed as
the vice president of "Omjavi, Inc." on the business signature card.
On the account opening document that was submitted for the Omjavi
Account, an address in the Bronx was provided as the primary address of
"Omjavi, Inc." In the section entitled Principal Officers, Partners or
Proprietors, on that same document, Barclay's home address was listed as
the same address as that of Omjavi, Inc.
Between October 5, 2001 and February 25, 2002, the following were the
only deposits made into the Omjavi Account: On October 9, 2001, the
deposit of one cent; on October 12, 2001, the deposit of the 9/20 Check
for $103,575, at a Chase Branch in Brooklyn, New York; on November 14,
2001, the deposit of $100; and on December 31, 2001, the deposit of the
12/14 Check for $117,038 at a Chase branch in Manhattan.
After the 9/20 Check for $103,575 was deposited on October 12, 2001,
the bank records revealed that between October 12, 2001, and November 26,
2001, about 10 checks were written off of the Omjavi Account totaling
$103,500. Of these ten checks, about five checks, ranging from $1,500, to
$9,800, were written to "cash" and endorsed on the back by "Beryl
Barclay." The endorsement signature on the back matched the signature of Barclay on the account
opening documents for the Omjavi Account.
Two of the ten checks were written to "Beryl Barclay," one for $23,000
and one for $2,000. These checks were signed by the Vice President. The
endorsement signature on the back matched the signature of Barclay on the
account opening documents for the Omjavi Account.
Three of the ten checks were written to three different individuals.
These checks ranged in amount from $7,000 to $20,700. Each of these
checks appeared to be signed by Barclay with the same signature matching
the signature on the account opening documents for the Omjavi Account.
The balance on the Omjavi Account on November 26, 2001, was
approximately $75. After the 12/14 Check for $117,038 was deposited on
December 31, 2001, between January 1, 2001, and February 25, 2002, about
twelve checks were written off of the Omjavi Account totaling
approximately $107,000. Of these twelve checks, approximately two checks,
for approximately $7,500 and $8,500 respectively, were written to "Cash"
and endorsed on the back by "Beryl Barclay" with a signature matching the
signature of Barclay on the account opening documents for the Omjavi
Account. The other ten checks written off of the Omjavi Account ranged in amount
from $5,000 to $15,000. These checks were written to eight different
individuals. Each of these checks appeared to be signed by Barclay with
the signature matching the signature on the account opening documents for
the Omjavi Account.
The balance on the Omjavi Account as of January 16, 2002, when the
account was frozen by Chase, was approximately $389.
When the postal inspector visited the Bronx address listed as the
address of "Omjavi, Inc." on the checks related to the Omjavi Account and
the account documents submitted to Chase, Barclay answered the door of
what was a multi-family residence.
Barclay was arrested on September 5, 2002. The individual or
individuals she obtained the stolen checks from have not been
identified. Barclay stated that someone named "Kevin" gave her the
funds. Barclay opened the fraudulent account and then either deposited
the two stolen checks into that account or gave the account information
to someone else to deposit those two stolen checks. She wrote checks off
the account, nearly emptying the account within weeks. The two stolen
checks were the only significant activity on the account. She wrote
checks out to cash, to herself, to her sister, her boyfriend and her 14
year old daughter; it is unclear to the government whether her family
realized that the funds were fraudulent. Victim Impact
According to the government, the identifiable victim in this case is
J.P. Morgan Chase, which sustained a loss of the two stolen checks
negotiated, which total $220,613. A remaining balance of $389 was
retained by Chase, reducing the restitution to $220,224.
Beryl Barclay was born on December 20, 1946, in St. Catherine, Jamaica.
At age 24, in 1970, Barclay traveled with her group to the U.S. to
perform in night clubs in Connecticut, and Brooklyn, New York; she
resided in the Bronx. On May 29, 1971, she married Owen Barclay in
Manhattan, with whom she had two children, Omar Barclay, age 29, and
Jason Barclay, age 23. Barclay's third and youngest child, Victoria
Hoggard, age 16, resides with Barclay. The defendant's sister, Dorrell,
also resides with Barclay.
Barclay reportedly applied for permanent residence and received her
"Green Card" in 1974. According to the Immigration and Customs
Enforcement database, Barclay entered the U.S. on February 10, 1974, and
is a naturalized U.S. citizen. She provided a copy of her naturalization
certificate which indicates that she was naturalized on January 28,
1981. Financial Condition: Ability to Pay
Barclay's most recently submitted financial affidavit reflects
approximately $1,900 in personal bank accounts, and a house which Barclay
estimates to be worth $185,000, which has a mortgage balance of $103,000.
Barclay listed additional liabilities which total approximately $15,000.
Barclay listed her monthly cash inflows which include her net monthly
salary, $1,765, plus $160 in additional work pay; child support in the
amount of $200; and income of her sister who resides with her, in the
amount of $500, totaling $2,625.47 in total net monthly income. The
itemization of the defendant's net monthly expenses was requested but was
Offense Level Computation
The November 1, 2001 edition of the Guidelines Manual, in effect at the
time the offense was committed, was utilized for calculation purposes in
accordance with § 1B1.11(b)(1).
The guideline for a violation of 18 U.S.C. § 371 is found in §
2X1.1, which provides that the base offense level is represented by the
base offense level from the guideline for the substantive offense, Bank
Fraud, plus any adjustments from such guideline for any intended offense
conduct that can be established with reasonable certainty. Counts One and
Two are grouped together as the offense level is determined largely on the basis of the total
amount of harm or loss, pursuant to § 3D1.2(d).
The guideline for a violation of the substantive offense, bank fraud,
is found in § 2B1.1, which calls for a base offense level of six.
Adjustment for Amount of Loss
Based on a total loss of $220,613, the offense level is increased 12
levels, pursuant to § 2B1.1(b)(1)(G), to 18. Barclay objects to this loss
enhancement, arguing that the enhancement should reflect only the
financial benefit retained by her.
Barclay relies on U.S. v. Studley, 47 F.3d 569 (2d Cir. 1995) in
arguing that the enhancement for loss amount should be restricted to
Barclay's own fraudulent activity and should not include the fraudulent
activities of others. While Studley does permit the exclusion of loss
caused by others when the loss was not reasonably foreseeable by the
defendant, see id. at 574 (citing § U.S.S.G. § 1B1.3, Applic. Note 1
(1989, 1990, 1991)), in this case the loss calculation includes only the
monetary loss caused as a direct result of Barclay's conduct. Barclay has
not contested that a loss of $220,613 was not reasonably foreseeable. In United States v. Zeneski, 913 F. Supp. 43 (E.D.N.Y. 1996), the
defendant, after pleading guilty to conspiracy to commit credit card
fraud, argued that he should be sentenced based only on the $3,500 worth
of computer equipment he received. Id. at 47. In rejecting the
defendant's argument, the court noted that "[w]hen a defendant is hired
to play a role necessary to the completion of a criminal episode, he will
be held liable for all other acts necessary to the completion of that
episode." Id. (interpreting U.S.S.G. § 1B1.3, Applic. Note 2, Illus.
(c)(3)). Here, Barclay's participation in the deposit of the checks was
necessary for the completion of the bank fraud. The court further held
that "[t]here is no indication that [the defendant] is liable only for
the amount he was paid for his participation." Id. The argument of the
Zeneski court is persuasive, and the loss enhancement will be based on
the total loss to the victim.
Adjustment for Mitigating Role
Barclay argues that she is entitled to a three level decrease in
offense level pursuant to § 3B1.2 for her limited role in the offense.
The Application Notes to § 3B1.2 states "that the range of adjustments in
§ 3B1.2 are `for a defendant who plays a part in committing the offense
that makes him substantially less culpable than the average participant'
and that the determination is heavily dependent upon the facts of the
particular case.'" United States v. Garcia, 920 F.2d 153, 155 (2d Cir.
1990) (quoting § 3B1.2, Applic. Note 3(A) and (C)). However, a reduction pursuant to §
3B1.2 "will not be available simply because the defendant played a lesser
role than his co-conspirators; to be eligible for a reduction, the
defendant's conduct must be `minor' or `minimal' as compared to the
average participant in such a crime." United States v. Rahman, 189 F.3d 88,
159 (2d Cir. 1999) (per curiam), cert. denied, 528 U.S. 1094, 120 S.Ct. 830,
145 L. Ed; 2d 698 (2000). Further, "[t]he defendant bears the burden of
establishing by a preponderance of the evidence that [she] is entitled to
a mitigating role adjustment under section 3B1.2 of the Sentencing
Guidelines." United States v. Carpenter, 252 F.3d 230, 234 (2d Cir.
Barclay notes that the government has not argued that Barclay devised
the conspiracy, nor that she stole or altered the checks. However,
Barclay's role in the conspiracy was not minor. Barclay opened the Omjavi
Account herself and used the name of a company that she used to be the
President of and which was defunct when the account was opened, and
Barclay controlled the account. In addition to depositing or facilitating
the deposit of the two altered checks, Barclay wrote over twenty checks
over the course of several months, nearly emptying the account. On some
checks, Barclay noted on the memo line that the checks were for
"equipment purchase" or "consultation," despite the fact that no business
existed at the time. Because Barclay's role in the conspiracy was
substantial and essential, see United States v. Yu, 285 F.3d 192, 200 (2d Cir. 2000) (factor to be considered in determining nature
of role is "the importance of the defendant's actions to the success of
the venture."), the request for a reduction under § 3B1.2 is denied.
Aberrant Behavior Departure
Barclay has moved for a downward departure on the grounds of aberrant
behavior pursuant to § 5K2.20, and because of exceptional family
Aberrant behavior is defined in the Guidelines as "a single criminal
occurrence or single criminal transaction that (A) was committed without
significant planning; (B) was of limited duration; and (C) represents a
marked deviation from an otherwise law-abiding life." § 3B1.2 Applic.
Note 1; see also United States v. Castellanos, 355 F.3d 56 (2d Cir.
2003). Barclay's criminal conduct required planning: she opened the
Omjavi account in October 2001 in the name of a non-existent
corporation, and then deposited, or facilitated the deposit of one check
a week later, and another check over two months later. Further, while the
scheme lasted only three months, that was because Chase froze the Omjavi
account once it suspected wrongdoing. A departure based on aberrant
behavior is therefore not warranted. Family Circumstances Departure
Downward departures based on family circumstances "are a discouraged
basis for departure because the Commission has deemed them to be not
generally relevant." United States v. Tejeda, 146 F.3d 84, 87 (2d Cir.
1998) (quoting United States v. Galante, 111 F.3d 1029, 1034 (2d Cir.
1997)); see also U.S.S.G. § 5H1.6 ("Family ties and responsibilities are
not ordinarily relevant in determining whether a departure may be
warranted."). "For this reason, a district court may depart downward on
this basis only if the `hardship in a particular case is exceptional.'"
Tejeda, 146 F.3d at 87 (quoting Galante, 111 F.3d at 1034).
Barclay argues that she is the sole breadwinner in the family, and is
solely responsible for the upbringing of her teenaged daughter. According
to Barclay, the father of her daughter plays only a minimal role in his
daughter's life. Under such circumstances, courts have granted downward
departures based on family circumstances. See, e.g., United States v.
Johnson, 964 F.2d 124 (2d Cir. 1992) (upholding 13-level downward
departure for defendant who was solely responsible for care of four young
children); United States v. White, 301 F. Supp.2d 289, 296-97 (S.D.N.Y.
2004) (eight-level departure for defendant who is the sole caregiver of
six young children); United States v. Ekwunoh, 888 F. Supp. 369, 373
(E.D.N.Y. 1994) (fact that defendant was solely responsible for support
of three young children justified thirteen-level downward departure); United States v. McGee,
802 F. Supp. 843, 844 (E.D.N.Y. 1992) (downward departure granted where
defendant's nephew depended on her for safety, health and education);
United States v. Gerard, 782 F. Supp. 913 (S.D.N.Y. 1992) (downward
departure granted where defendant was "the sole care provider to two
children, aged sixteen and seventeen"). It is true that:
even the most extenuating family circumstances may be
outweighed by other considerations. The defendant's
crime may be serious enough that, for purposes of
incapacitation or specific or general deterrence, the
full Guidelines sentence must be imposed.
White, 301 F. Supp.2d at 295-96 (quoting United States v. Naugle,
879 F. Supp. 262, 265 (E.D.N.Y. 1995)). Barclay's crime, however, is not
so serious that it outweighs the rationale for a departure based on
family circumstances, which is "not that [Barclay's] family circumstances
decrease her culpability, but that [courts] are reluctant to wreak
extraordinary destruction on dependents who rely solely on the defendant
for their upbringing." Johnson, 964 F.2d at 129. Accordingly, Barclay is
granted a three-level departure to mitigate the deleterious effects of
Barclay's imprisonment upon her daughter. Barclay's adjusted offense
level is therefore 15. Criminal History
According to the FBI and the New York State Division of Criminal
Justice Services, Bureau of Identification, Barclay has no prior criminal
convictions. Therefore, Barclay has zero criminal history points and a
Criminal History Category of I.
Applicable Guidelines Range
The maximum term of imprisonment for Count One is 5 years, pursuant to
18 U.S.C. § 371 and 30 years for Count Two, pursuant to 18 U.S.C. § 1344.
Based on a total offense level of 15 and a Criminal History Category of
I, the guideline range for imprisonment is 18 to 24 months.
If a term of imprisonment is imposed for Count One, a term of
supervised release of not more than 3 years may also be imposed, pursuant
to 18 U.S.C. § 3583(b)(2)), and at least two years but not more than
three years, pursuant to § 5D1.2(a)(2). If a term of imprisonment is
imposed for Count Two, a term of supervised release of not more than 5
years may also be imposed, pursuant to 18 U.S.C. § 3583(b)(1)), and at
least three years but not more than five years, pursuant to § 5D1.2(a)(1).
Pursuant to 18 U.S.C. § 3624(e), multiple terms of supervised release run
concurrently. The defendant is not eligible for probation on Count One, because she
is being sentenced at the same time to a term of imprisonment for a
different offense, pursuant to 18 U.S.C. § 3561(a)(3). The defendant
is not eligible for probation on Count Two because the instant offense is
a Class B felony, pursuant to 18 U.S.C. § 3561(a)(1). Because the
applicable guideline range is in Zone D of the Sentencing Table, the
defendant is also not eligible for probation pursuant to § 5B1.1,
application note 2.
The maximum fine for Count One is twice the pecuniary gain from the
offense, $441,226, pursuant to 18 U.S.C. § 3571(d). The maximum fine for
Count Two is $1,000,000, pursuant to 18 U.S.C. § 1344. The fine range for
the instant offense is from $6,000 to $1,441,226, pursuant to § 5E1.2
(c)(3)(A) and (c)(4). A special assessment of $200 is mandatory, pursuant
to 18 U.S.C. § 3013.
Subject to the defendant's ability to pay, in imposing a fine the Court
shall consider the expected costs to the government of any imprisonment,
probation, or supervised release pursuant to § 5E1.2(d)(7). The most
recent advisory from the Administrative Office of the United States
Courts suggests a monthly cost of $1,931.97, to be used for imprisonment,
a monthly cost of $292.21, for supervision, and a monthly cost of
$1,590.66, for community confinement. Full restitution to the victim is required under 18 U.S.C. § 3663A and
18 U.S.C. § 3664. Pursuant to § 5E1.1(a)(1), in case of an identifiable
victim, a restitution order shall be entered for the full amount of the
victim's loss if such order is authorized under 18 U.S.C. § 3663A.
Restitution in the amount of $220,224, may be made payable to the U.S.
District Court Clerks Office for disbursement to the following victim:
J.P. Morgan Chase 2 Chase Manhattan Plaza, 15th Floor
New York, N.Y. 10081 Attn: Cheryl Butler (212)
In light of the foregoing, Barclay will be sentenced to eighteen months
imprisonment, to be followed by three years supervised release. Barclay
is also ordered to make full restitution to the victim.
The following conditions are mandatory: 1) the defendant shall not
commit another federal, state, or local crime; 2) the defendant shall not
illegally possess a controlled substance; 3) the defendant shall not
possess a firearm 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
The standard conditions of supervision (1-13) are imposed with the
following special conditions: a) the defendant shall provide the
probation officer with access to any requested financial information; and
b) the defendant 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 with the installment payment schedule.
The defendant is to report to the nearest Probation Office within 72
hours of release from custody, and is to be supervised by her district of
Barclay shall pay a mandatory special assessment of $200, which shall
be due immediately.
This sentence is subject to further hearing on June 7, 2004, at 4:30
It is so ordered.
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