United States v. Idalis Lopez , 503 F. App'x 147 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-1193
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UNITED STATES OF AMERICA
v.
IDALIS LOPEZ,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 1-11-cr-00412-001)
District Judge: Honorable Joseph H. Rodriguez
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Submitted Under Third Circuit LAR 34.1(a)
November 1, 2012
Before: SLOVITER, AMBRO, and BARRY, Circuit Judges
(Opinion filed: November 8, 2012)
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OPINION
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AMBRO, Circuit Judge
Idalis Lopez pled guilty to bank fraud in violation of 18 U.S.C. § 1344. Pursuant
to the Mandatory Victims Restitution Act (―MVRA‖), 18 U.S.C. § 3663A, she was
ordered to pay $43,000 in restitution. Lopez now appeals this amount. We affirm.
Lopez was employed by Bank of America as a bank teller in Atlantic City, New
Jersey. Through this position, she befriended bank customer J.R., a retired bachelor
suffering from poor health. The two grew close as Lopez assisted J.R. in getting around
and paying his bills, and they developed something akin to a father-daughter relationship.
Lopez ultimately betrayed J.R. when she misappropriated thousands of dollars from his
Bank of America account between July 2008 and May 2009. Lopez maintains that she
used this money to pay expenses and that she always intended to pay it back.
Once J.R. became suspicious that Lopez was stealing from him, he made an
inquiry with his bank. Lopez was subsequently interviewed on at least two separate
occasions by agents from the Federal Bureau of Investigation (―F.B.I.‖). At first, she
denied any wrongdoing. However, at the second interview she admitted to transferring
money fraudulently from J.R.‘s Bank of America account into her own. The Government
has presented evidence that J.R.‘s account was reduced by $45,502.07 during the relevant
period. 1 These reductions included $8,855.07 in automatic teller machine (―ATM‖)
withdrawals, $15,300.00 in teller withdrawals, and $21,347.00 in electronic transfers.
While Lopez admits full responsibility for the electronic transfers, she denies liability for
the ATM and teller withdrawals. In a letter to the United States Probation Office, J.R.
confirmed that Lopez had withdrawn ―approximately $43,000‖ from his Bank of America
accounts.
1
We note that the amounts reflected in the Presentence Report (―PSR‖) total $325 more
than those contained in the record. PSR at ¶ 24. We assume that this was an
unintentional mistake, and in any event it is ultimately irrelevant for the purposes of this
appeal.
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Following a January 11, 2012 sentencing hearing, the District Court sentenced
Lopez to one day‘s imprisonment and three years‘ supervised release. She was also
ordered to pay restitution in the amount of $43,000 under the MVRA. The Court issued a
subsequent Order directing that the restitution funds be disbursed to J.R. Lopez appeals,
and argues that the District Court lacked sufficient evidence to conclude that she owed
restitution with respect to the ATM and teller withdrawals.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We review the amount of a particular restitution award under the MVRA for abuse
of discretion. United States v. Bryant, 655 F.3d 232, 253 (3d Cir. 2011) (citing United
States v. Quillen, 335 F.3d 219, 221–22 (3d Cir. 2003)). ―‗To identify such abuse, we
must conclude that a challenged ruling rests on an error of law, a clearly erroneous
finding of fact, or otherwise cannot be located within the range of permissible
decisions.‘‖ United States v. Aumais, 656 F.3d 147, 151 (2d Cir. 2011) (quoting United
States v. Pearson, 570 F.3d 480, 486 (2d Cir. 2009)).
To repeat, Lopez admits responsibility for the $21,347 of fraudulent electronic
transfers, but disclaims liability for the balance of the $43,000 withdrawn through ATM
and teller transactions.2 In particular, she asserts that some additional evidence was
2
Lopez represents that she has been steadfast in this position, yet we note that the PSR
calls this assertion into question. It states that Lopez ―denied that she used the ATM
money for herself and said that the counter withdraws [sic] conducted at the bank were
for J.R.‘s benefit and used to pay his monthly bills.‖ PSR at ¶ 22. Further, Lopez
apparently admitted to ―taking a few hundred dollars from these type of transactions for
herself.‖ Id.3
necessary—such as withdrawal slips, witness testimony or surveillance videos—to
implicate her for the additional funds.
The MVRA directs that defendants convicted of certain offenses ―make restitution
to the victim of the offense or, if the victim is deceased, to the victim‘s estate.‖ 18 U.S.C.
§ 3663A(a)(1). The Act applies to offenses against property, id. at § 3663A(c)(1)(A)(ii),
which includes Lopez‘s conviction for bank fraud. ―In each order of restitution, the court
shall order restitution to each victim in the full amount of each victim‘s losses as
determined by the court and without consideration of the economic circumstances of the
defendant.‖ Id. at § 3664(f)(1)(A). The MVRA places the burden on the Government to
demonstrate the amount of a loss and directs that ―[a]ny dispute as to the proper amount
or type of restitution shall be resolved by the court by the preponderance of the
evidence.‖ Id. at § 3664(e).
To meet this burden, the Government presented a spreadsheet totaling the
disbursements from J.R.‘s account at $45,502.07 and the unsworn letter by J.R. stating
that his losses were ―approximately $43,000.‖ We hold that it was not clearly erroneous
for the District Court to determine that this production was adequate in this case.
The Court‘s determination survives scrutiny for clear error primarily because it
was not ―completely devoid of a credible evidentiary basis‖ and bore a ―rational
relationship to the supporting data.‖ United States v. Vitillo, 490 F.3d 314, 330 (3d Cir.
2007) (quoting United States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997)). All that is
required in the restitution context is a ―modicum of reliable evidence.‖ United States v.
Salas-Fernandez, 620 F.3d 45, 48 (1st Cir. 2010) (quoting United States v. Vaknin, 112
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F.3d 579, 587 (1st Cir. 1997)). Here, the victim‘s letter was largely corroborated by the
account activity, and it was not irrational for the District Court to afford it substantial
weight in the absence of credible countervailing evidence. See United States v. Smith,
528 F.3d 423, 425 (5th Cir. 2008) (holding employee‘s interview statement of loss was
sufficient where the defendant ―did not introduce any rebuttal evidence or elicit any live
testimony at the sentencing hearing suggesting that the victim‘s calculation of the total
loss was incorrect‖); United States v. Prochner, 417 F.3d 54, 66 (1st Cir. 2005) (―In the
absence of rebuttal evidence beyond defendant‘s self-serving words, we cannot say the
court clearly erred in accepting the PSR‘s calculation of the restitution amount.‖).
Furthermore, a victim impact statement can be sufficient to establish the amount
of a loss. See, e.g., United States v. Rochester, 898 F.2d 971, 982 (5th Cir. 1990)
(holding an affidavit was a sufficient factual basis for an order of restitution); United
States v. Bales, 813 F.2d 1289, 1298 (4th Cir. 1987) (determining that a victim impact
statement made by a bank security officer provided ―adequate proof of the loss‖). The
U.S. Sentencing Guidelines endorse this approach, commenting that ―affidavits of
witnesses may be adequate under many circumstances‖ in order to resolve sentencing
disputes. U.S.S.G. § 6A1.3 cmt. Moreover, the procedure in the MVRA requires a
district court to ―order the probation officer to obtain and include in its presentence
report . . . information sufficient for the court to exercise its discretion in fashioning a
restitution order.‖ 18 U.S.C. § 3664(a). Insofar as this report shall include ―a complete
accounting of the losses to each victim,‖ id., the probation officer is required—where
practicable—to notice the identified victims and provide each with an affidavit form as to
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their specific losses subject to restitution, id. at § 3664(d)(2)(B), (A)(vi). We see no
reason that J.R.‘s letter should be disallowed as the equivalent of a victim impact
statement, especially since the author was subject to criminal liability for ―any materially
false, fictitious, or fraudulent statement or representation‖ contained within it. 18 U.S.C.
§ 1001(a).3 As such, it was an adequate basis for the District Court‘s decision, and we
affirm its restitution order.
3
Section 1001(a) provides that ―whoever, in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the Government of the United States,
knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement
or representation . . . shall be fined under this title, imprisoned not more than 5 years . . .
or both.‖ 18 U.S.C. § 1001(a)(2).
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