Documente Academic
Documente Profesional
Documente Cultură
No. 08-5220
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:07-cr-00119-FDW-DCK-4)
Argued:
Decided:
PER CURIAM:
Alfredo Homes Susi (Susi) appeals his conviction of one
count of conspiracy to defraud, in violation of 18 U.S.C. 371,
and
multiple
counts
of
aiding
and
abetting
wire
fraud,
insufficient
evidence
existed
for
his
in
Susi
convictions,
following
reasons,
we
affirm
all
the
For
convictions
as
I.
Susis
convictions
arise
from
his
participation
in
scheme
consisted
of
the
following
pattern:
first,
the
dollars,
fraudulently
in
represent
sweepstakes.
himself
as
The
telemarketer
federal
agent
of
would
a
non-
Union
insurance
victim
to
premium
was
Lloyds
to
of
insure
successfully
London
of
delivery
of
persuaded
to
Costa
the
send
Rica
money.
money,
as
an
If
the
co-
The loader
would tell the victim that, because the prize was larger, the
insurance fees would also be higher.
fraud and never existed so no prize money was ever paid to any
of the victims of the scheme.
The call center at issue in this case (hereinafter the
Kalchstein
call
center)
was
operated
by
Martin
Kalchstein
Susi
began working at the call center in Costa Rica during May 2005
but left during October 2005 and returned to the United States.
Susi called victims, initially playing the part of an opener but
eventually working as a loader.
trial
that
Susi
earned
between
3
and
$60,000
in
commissions
directly
during
caused
his
time
working
approximately
at
$250,000
the
in
call
losses
center
to
and
victims.
also
rendered
forfeiture
verdict
of
approximately
$1,885,000. 2
The
Presentence
Investigation
Report
(PIR)
determined
Susis
figure
time
working
there
was
calculated
was
by
approximately
multiplying
$760,000.
Kalchsteins
The PIR estimates that the total loss for all sixteen
Rican
call
centers
utilizing
similar
schemes
was
$4.2
to
the
advisory
Guidelines
range
of
168
to
210
Susis
purportedly
brother,
hearing.
Sam
Susi
limited
(Sam),
role
in
the
testified
conspiracy.
for
the
defense
Susis
at
the
from
other
similarly-situated
defendants
because
fraud,
to
run
concurrently
with
each
other,
and
an
of
restitution
$4.2
million.
This
Court
has
II.
A.
Susi first argues that the district court erred by denying
his motion for judgment of acquittal.
motion
in
district
court
on
general
grounds, 3
he
makes
an
Specifically,
Susi contends that the government had not proven one overall
conspiracy. (Appellants Br. 16-17).
to
prove
the
existence
of
larger
conspiracy
reviewing
whether,
the
sufficiency
viewing
the
of
the
evidence
evidence
in
the
we
must
light
most
This
argument
involving
that
call
he
was
centers
charged
beyond
the
with
an
overall
Kalchstein
call
Contrary to
call
mentioned
centers
during
operating
trial,
there
in
were
Costa
no
Rica
details
were
Although
briefly
elicited
from
to
take
actions
inconsistent
with
the
A mere cessation
States
v.
Walker,
796
F.2d
43,
49
(4th
Cir.
1986).
made
(Fialkoff),
no
such
showing.
co-conspirator,
Although
testified
that
Allen
Fialkoff
Susi
told
him
he was going to take any steps to make right what he had done,
(J.A. 95), and one day he just didnt come in. (J.A. 107).
Consequently,
jurys
there
conclusion
is
substantial
that
Susi
evidence
did
not
to
support
withdraw
from
the
the
conspiracy.
B.
Susi
trial,
next
the
argues
prosecutor
that
[t]hroughout
engaged
in
the
pattern
course
of
of
the
prejudicial
misconduct,
the
cumulative
effect
of
which
destroyed
Susis
F.3d
306,
prosecutorial
whether
the
310
(4th
misconduct
prosecutors
Cir.
2005).
occurred,
remarks
In
this
or
determining
whether
Court
first
evaluates
conduct
were
improper.
United States v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998).
However, if this Court finds that the remarks were improper, the
conduct
do[es]
not
always
mandate
retrial.
The
relevant
with
unfairness
as
to
make
the
resulting
conviction
United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002).
1.
Susi
first
objects
to
certain
remarks
to
the
effect
that
comments
made
by
the
crime
was
particularly
heinous, that Susi was of bad character, and that the victims
were elderly and vulnerable.
Susis argument that the prosecutor improperly commented on
the
victims
age
or
vulnerability
is
without
merit.
The
that
losing
the
money
created
hardships
for
them.
Thus, the
liquidity,
good
credit,
and
hit[]
them
daily
with
an
Court
latitude
adversary
in
has
held
that
presenting
system
permits
prosecutors
arguments
the
to
prosecutor
10
enjoy
jury,
to
considerable
because
the
prosecute
with
earnestness and vigor. Bates v. Lee, 308 F.3d 411, 422 (4th
Cir.
2002)
(1985)).
(quoting
United
Consequently,
States
v.
[c]ommitted
Young,
470
advocates
do
U.S.
not
1,
always
reason
to
resolve
such
heated
clashes
of
competing
views. Id.
Furthermore, even assuming arguendo that the prosecutors
remarks were improper, there is no evidence that the comments
so infected the trial with unfairness as to make the resulting
conviction a denial of due process. Mitchell, 1 F.3d at 240
(quotation omitted).
2.
Second, Susi alleges that the prosecutor committed a socalled Golden Rule violation 5 during closing, asking the jury
to
put
themselves
(Appellants
Br.
into
29).
the
position
Specifically,
of
Susi
the
victims.
objects
to
the
963,
964
(1st
Cir.
1993)
([T]he
invitation
is
not
an
remarks,
even
if
improper,
prejudicially
affected
[his]
12
3.
Finally, Susi objects to the prosecutors call to the jury
to send a message to the community. (See J.A. 210).
Even if
instruction
mentioned
above,
but
the
court
also
the
Thus,
Court.
(J.A.
213).
even
if
the
comment
were
cured
by
the
district
courts
curative
C.
Susi next contends that the cumulative effect of certain
evidentiary rulings by the trial court denied him a fair trial.
Specifically, Susi alleges that the district court erred when it
denied the defense motion for mistrial after there was improper
and
prejudicial
prosecutions
contact
staff,
with
jurors
(Appellants
13
by
Br.
member
38),
and
of
the
because
prosecution
comments
witness
on
Kalchstein
Appellant
made
Susis
direct
right
to
and
prejudicial
remain
silent.
States
v.
Basham,
561
F.3d
302,
330
(4th
Cir.
2009)
1.
Susi alleges that, during trial, Ms. Bachman (Bachman),
who was working with the U.S. Attorneys Office contacted or
spoke to one of the jurors, specifically, Alternate Juror 1.
(J.A.
215;
220).
Upon
investigation
by
the
district
court,
entirety
of
her
conversation
during
the
sidebar
at
14
That
was
the
entire
extent
of
my
conversation
during
141
(4th
Cir.
1996))
(internal
citations
omitted).
In
with
juror
during
trial;
(5)
about
the
matter
before
the
evidence
that
the
extrajudicial
communications
or
Alternatively, even
assuming that Bachman did speak with the alternate juror, the
communication would have been innocuous.
There is no evidence
the
ultimately
district
jury,
participate
court
and
id.,
did
in
not
the
alternate
did
not
Consequently,
the
deliberations.
abuse
its
discretion
juror
in
finding
that
2.
Susi
argues
inappropriately
that
made
Kalchstein,
direct
and
government
prejudicial
witness,
comments
on
contends
that
Kalchsteins
statement
that
other
co-
either
or
comment
by
instructions
by
the
the
prosecution
court
that
on
the
such
accuseds
silence
is
the
prosecutor,
prosecutorial
nor
questioning.
were
they
Moreover,
directly
the
prompted
testimony
at
by
issue
clearly was not of such character that the jury would naturally
and necessarily take it to be a comment on the failure of the
accused to testify. United States v. Anderson, 481 F.2d 685,
701 (4th Cir. 1973) (quotation omitted).
17
Instead, Kalchstein
doctrine
finds
no
foothold.
Basham,
561
F.3d
at
330
(quotation omitted).
D.
Finally, Susi contends that the district court abused its
discretion in imposing a sentence on the defendant that was
unfounded, unsupported and unreasonable. (Appellants Br. 42).
Susi argues that,
unrelated
defendants
for
purposes
of
increasing
loss
harshest
sentences
on
one
of
the
least
culpable
U.S. 38, 51 (2007); see also United States v. Pauley, 511 F.3d
18
that the trial court did not commit any procedural error, such
as
failing to calculate (or improperly calculating) the
Guidelines
range,
treating
the
Guidelines
as
mandatory, failing to consider the [18 U.S.C.]
3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the
chosen sentenceincluding an explanation for any
deviation from the Guidelines range.
Gall, 552 U.S. at 51.
procedurally
sound,
it
then
considers
the
substantive
conclude
the
Id.
district
court
did
make
significant
[w]e
have
approximately
$4.2
million
in
claims
collected by the U.S. Probation Office and the U.S.
Government at that time. Those are actual claims. We
dont know that - we havent totaled up the exact
number, the U.S. Probation Office has not for the
Court, but the estimate right now from the Probation
Office is 4.2 million.
(J.A. 396).
was
working
one
call
center
and
[he
was]
directly
the
scope
of
this
fraud
involved
millions
and
millions
of
The
$4.2
million
figure
represents
the
losses
almost
exclusively
to
Kalchsteins
call
center.
the
district
court
abused
its
discretion
by
the
within
sentence
Guidelines
was
range,
to
the
which
properly
Susi
calculated
withdrew
his
advisory
objections.
590
that
F.3d
the
259,
269
district
(4th
court
Cir.
2010)
committed
(Only
no
if
we
significant
also
discretion
by
restitution. 6
Llamas,
___
follows
that
ordering
the
that
district
Susi
pay
court
abused
$4.2
million
its
in
___,
2010
WL
963195
(4th
Cir.
2010),
is
instructive:
In
pertinent
part,
the
Mandatory
Victims
Restitution Act of 1996 (the MVRA) directs a
sentencing
court,
when
sentencing
a
defendant
convicted of an offense involving, inter alia, fraud
or
deceit,
to
order
that
the
defendant
make
restitution to the victim of the offense. 18 U.S.C.
3663A(a)(1).
Because the MVRA focuses on the
offense of conviction rather than on relevant conduct,
the focus of [a sentencing] court in applying the
MVRA must be on the losses to the victim caused by the
offense. United States v. Newsome, 322 F.3d 328, 341
(4th Cir. 2003) (emphasis added).
Thus, in the
context of a conspiracy, a restitution award under the
MVRA is limited to the losses attributable to the
specific conspiracy offenses for which the defendant
was convicted. See id.
At
the
sentencing
hearing,
investigators
testified
that
the
Kearns
Call
Center
caused
approximately $1.7 million in losses between March
2004 and April 2006.
Yet, in applying the MVRA, the
6
21
III.
For the foregoing reasons, we hold that the district court
did not err in denying Susis motion for acquittal, committed no
cumulative
evidentiary
error,
and
occurred.
no
prosecutorial
misconduct
However, we
22
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
23