United States District Court, S.D. New York
[Copyrighted Material Omitted]
For USA, Plaintiff: Micah William Janso Smith, U.S. Attorney's Office, SDNY (St Andw's), New York, NY.
DECISION AND ORDER
Victor Marrero, United States District Judge.
By letter motions dated January 27, January 29, January 30, February 3, and June 16, 2014, defendant Christopher Reese (" Reese" ) moved for a correction of sentence pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure (" Rule 35(a)" ). (See Dkt. Nos. 133, 138, 139, 143, 168.) Reese additionally opposed the Court's imposition of a forfeiture order (" Forfeiture Order" ) (Dkt. No. 141) by letter motion dated February 10, 2014 (Dkt. No. 145) and disputed the inclusion of certain victims as part of the restitution order (" Restitution Order" ) (Dkt. No. 142) by letter motion dated February 10, 2014 (Dkt. No. 146). On February 25, 2014, the Court vacated the Forfeiture Order in order to permit Reese the opportunity to contest its contents. (Dkt. No. 150.) To this end, the Court held a hearing on June 20, 2014, at which time the Court also articulated findings of fact in relation to sentencing. Finally, on June 30, 2014, Reese made a motion for a new trial based on alleged perjury of a witness pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure. (Dkt. No. 171.)
For the reasons discussed below, Reese's Rule 35(a) motion is GRANTED in part and DENIED in part, his motion opposing the Restitution Order is DENIED, and his motion to vacate the Forfeiture Order is GRANTED in part and
DENIED in part, and his Rule 33(b)(1) motion is DENIED.
The Court held a trial in this matter during March 2013, at which the jury found Reese guilty of: (a) one count of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349 (" Count One" ); (b) one count of bank fraud in violation of 18 U.S.C. § 1344 (" Count Two" ); (c) one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1343 (" Count Three" ); and (d) one count of aggravated identity theft in violation of 18 U.S.C. § 1028A (" Count Four" ). On January 24, 2014, the Court sentenced Reese to eighty-four months' imprisonment for each of Counts One, Two, and Three, to run concurrently to each other, and twenty-four months' imprisonment for Count Four, to run consecutively to the sentences for Counts One, Two, and Three, creating an effective sentence of one hundred eight months of imprisonment. In addition to the term of imprisonment, this Court sentenced Reese to three years' supervised release for Counts One, Two, and Three, to run concurrently to each other, and one year of supervised release for Count Four, to run consecutively to the other counts. The effective term of supervised release was, therefore, four years. In determining Reese's sentence, the Court considered the arguments advanced by both Reese and the Government in their respective sentencing submissions. (See Dkt. Nos. 120, 122, 126, 129; Letter from Reese dated December 16, 2013.) Further, at sentencing the Court adopted in full the Presentence Investigation Report, dated July 25, 2013.
II. LEGAL STANDARD
Rule 35(a) provides that, within fourteen days after sentencing, " the court may correct a sentence that resulted from arithmetical, technical, or other clear error." Fed R. Crim. P. 35(a).
A. VICTIM ENHANCEMENT
At sentencing, the Court found that Reese's actions involved ten or more victims, resulting in a two-level enhancement under U.S.S.G. § 2B1.1(b)(2) to Reese's total offense level. In his Rule 35(a) motion, Reese argues that the Court erred in applying this adjustment because two of the victims, John Sakal and Clifford James, were victims only because their " means of identification [were] used unlawfully or without authority." U.S.S.G. § 2B1.1 app. 4(E) (2013). Under certain circumstances, a defendant's offense level cannot be enhanced for unlawful use of another's " means of identification" if the defendant was also convicted of aggravated identity theft, 18 U.S.C. § 1028A, as Reese was in this case. U.S.S.G. § 2B1.6 app. 2 (2013).
Even if Reese were correct that victims only by virtue of the unlawful use of their means of identification cannot count towards the ten-victim enhancement in this case, the Court found that Sakal and James experienced actual losses aside from the use of their means of identification. Namely, " they had to spend an appreciable amount of time securing reimbursement from their banks or credit card companies." (Gov't Sent. Mem. dated December 13, 2013, Dkt. No. 123, at 13.) As such a loss of time can be quantified monetarily, Sakal and James are correctly considered victims. See United States v. Abiodun, 536 F.3d 162, 168-69 (2d Cir. 2008).
Further, Reese argues that Metropolitan Equities and Cox Media cannot be considered victims because all of their losses
were absorbed by JP Morgan Chase Bank and Bank of America, respectively. In the case of Metropolitan Equities, Reese alleges that JP Morgan Chase Bank compensated Metropolitan Equities after funds were fraudulently drawn from Metropolitan Equities's account. The Government, in its letter dated January 31, 2014 (Dkt. No. 140) (" Restitution Letter" ), indicates that, at trial, a representative of JP Morgan Chase Bank listed all parties compensated by JP Morgan Chase Bank following Reese's fraud, and Metropolitan Equities was not among the parties so compensated. (Restitution Letter at 6.) Thus, the Government argues, Metropolitan Equities must have borne this loss without compensation from JP Morgan Chase Bank. Reese similarly asserts that Bank of America compensated Cox Media following the deposit of a fraudulent check from Cox Media's bank account. The Government's Restitution Letter explains that both Wells Fargo and Bank of America refused to provide reimbursement to Cox Media, so Cox Media suffered the loss caused by the fraudulent check. (Restitution Letter at 8.)
At sentencing, " it [is] the government's burden to prove, by a preponderance of the evidence," facts relevant to sentencing. United States v. Navarro, 156 F.App'x 384, 386 (2d Cir. 2005). Here, the Court concludes that the Government has shown by a preponderance of the evidence that both ...