United States v. Murry, Darnell ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2413
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARNELL MURRY,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 CR 1056—Suzanne B. Conlon, Judge.
____________
ARGUED APRIL 6, 2004—DECIDED JANUARY 3, 2005
____________
Before RIPPLE, KANNE and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury found Darnell Murry
guilty of one count of transporting fraudulently obtained
merchandise across state lines in violation of 18 U.S.C.
§§ 2314 and 2, and one count of obtaining goods valued at
over $1000 through the unauthorized use of an access de-
vice in violation of 18 U.S.C. § 1029(a). On appeal, Murry
challenges both his conviction and his sentence, claiming
the district court erred in several evidentiary rulings and in
instructing the jury on the use of summary charts admitted
into evidence. He complains the court also erred in setting
2 No. 03-2413
the amount of restitution he is required to pay as part of his
sentence. We affirm the conviction but vacate and remand
the sentence so that the district court may adjust the
restitution order.
I.
Murry devised a simple scheme to lift large amounts of
merchandise from stores without paying for it so that he
could resell it on the street. In the beginning of this ill-con-
ceived venture, Murry simply added himself as an autho-
rized user on the store credit card accounts of unsuspecting
shoppers. He then purchased goods in person at the stores
or placed telephone orders for merchandise and sent his
cousin, Horatio Jones, to pick up the items with a rented
truck. Co-defendant Kwonnie Stanciel also assisted Murry
by finding buyers for the fraudulently obtained merchan-
dise. Evidence at the trial showed that Murry used twenty-
five credit card account numbers belonging to twenty-three
different victims to complete or attempt to complete pur-
chases totaling more than $250,000 at Home Depot, Sam’s
Club and Wal-Mart stores in Illinois, Michigan, Wisconsin
and Indiana. All of these stores had credit programs run by
GE Capital. The purchases were made between March 28,
2002 and October 31, 2002.
Jones was eventually arrested trying to pick up a load of
hardwood flooring that Murry had ordered using one of the
fraudulent accounts. Jones agreed to cooperate with the
government in an investigation of Murry’s fraudulent pur-
chases. Jones subsequently recorded phone calls with Murry
in which Murry asked Jones to pick up more hardwood
flooring from Home Depot stores in Michigan and Indiana.
On October 31, 2002, the scheme came to an end. Jones had
recorded calls in which Murry asked him to pick up $12,000
worth of hardwood flooring from a Home Depot store in
Indiana. Murry had ordered the flooring by phone, again
No. 03-2413 3
using one of the accounts to which he had fraudulently
added his name as an authorized user. Murry and Stanciel
drove a car to the Indiana Home Depot with Jones following
in a truck. Unbeknownst to Murry, their small convoy was
accompanied by a number of federal agents witnessing the
transaction. After the merchandise pick-up, Murry directed
Jones to an alley in Chicago to deliver the goods. Murry was
then arrested and charged as we have described above.
All of the purchases that were at issue at trial were sum-
marized in charts admitted as Exhibits 222 and 223.1 The
charts were prepared by Kellie Meador, an employee of GE
Capital, and were based on the business records of GE
Capital. Exhibit 222 displayed the purchases made at Home
Depot stores, and Exhibit 223 illustrated the purchases at
Sam’s Club stores. Although the underlying business rec-
ords of GE Capital were not introduced into evidence at
trial, for every transaction listed on the summary charts a
corresponding receipt or order form was introduced into
evidence from the records of the stores themselves. The
Home Depot summary chart consisted of eleven columns,
titled “Account #”, “Name”, “Auth Name”, “Auth User
Added”, “Account Open Date”, “Write Off/Adj Amt”, “Date
of Transaction”, “Transaction Amount”, “Store #”, “Called
By”, and “Call Date”. The Sam’s Club summary chart
consisted of ten columns, identical to those included on the
Home Depot chart minus the “Auth User Added” column.
For five of the Home Depot accounts, the authorized user
listed is Darnel Murry. Other authorized users included
David Cole and Thomas Toomey, aliases linked to Murry by
other evidence submitted at trial. On the Sam’s Club
accounts, the authorized users added to the accounts were
either Darnel Murry or Darael Murry, another alias linked
1
The charged conduct included both completed and attempted
transactions. For brevity, we will simply refer to the attempted
and completed transactions together as “purchases.”
4 No. 03-2413
to the defendant. The “Called By” column listed phone
numbers from which GE Capital received inquiries about the
account in question. The six different phone numbers used
to access account information were all linked to Murry
through cell phones or through his home address through
other evidence at trial. After two of the primary account
holders testified at trial that they did not know Murry,
never added him to their credit card accounts as an autho-
rized user, never made the purchases in question and did not
authorize Murry to make any purchases for them, Murry
stipulated that the rest of the account holders would testify
in the same manner. This stipulation established that each
and every purchase was unauthorized.
The summary charts were not the only evidence against
Murry. A Home Depot loss prevention employee testified
that he observed Murry purchase several expensive tools,
including multiples of the same tool, from the store’s “tool
corral,” an area that contains high end, frequently stolen
merchandise. The employee videotaped the purchase, which
Murry made with one of the fraudulently obtained credit
cards. The receipt for this purchase was also admitted as
evidence, showing that Murry had used one of the fraudu-
lently obtained credit cards. The purchase totaled approxi-
mately $1400. The prosecution entered into evidence another
videotape of Murry making a different purchase using that
same credit card, and again the receipt was admitted into
evidence. This receipt displayed Murry’s driver’s license
number, which was written down by a store clerk at the
time of the purchase.
One of Murry’s cohorts in this crime spree testified against
him at trial. His cousin, Horatio Jones, testified that he
picked up merchandise for Murry on multiple occasions from
Home Depot stores in Illinois, Indiana, Wisconsin and
Michigan. Jones’ testimony was corroborated by the recorded
phone calls we mentioned above and by order forms for the
purchases, each bearing Jones’ signature, an account num-
No. 03-2413 5
ber of one of the victims, and a phone number linked to
Murry from which the order was placed. For these transac-
tions alone, the purchases totaled more than $80,000.
Additional evidence was provided by a Sam’s Club em-
ployee who testified that Murry added himself as an au-
thorized user to one of the victim’s credit card accounts by
filling out a form at the store. The employee photocopied
Murry’s driver’s license as part of the transaction, and both
the application form and the driver’s license photocopy were
admitted as evidence. Another Sam’s Club employee, a
supervisor at the membership desk, testified that she saw
Murry attempt to make a purchase using a membership
card that bore his picture and the name of one of the victims.
When she told Murry that she needed a manager’s approval
to complete the transaction, Murry left the store and left
the membership card behind. The card bearing Murry’s
likeness and the name of the account holder/victim was ad-
mitted at trial. Seven other photographs of Murry taken by
Sam’s Club employees when he added himself to other
victim accounts were admitted into evidence.
Finally, the government submitted fingerprint evidence
against Murry. One document containing Murry’s finger-
prints was a Home Depot order form that Murry gave to
Jones after placing an order and asking Jones to pick it up
for him. Murry’s cell phone number also appeared on the
order form. A second document containing Murry’s prints
was a Sam’s Club receipt for items totaling $1911.26,
charged to one of the accounts on which Murry stipulated
he was not an authorized user. The government produced
a third document containing Murry’s prints, the application
form that Murry filled out when adding himself as an
authorized user to one of the accounts. The application con-
tained his name, and the government also produced a
photocopy of Murry’s driver’s license taken when he filed
the application. The last document containing Murry’s fin-
gerprints was another receipt documenting an unauthorized
6 No. 03-2413
purchase. Two of these documents were damaged or destroyed
by the process used to lift the fingerprints, and so copies of
the originals were introduced into evidence at trial. All in
all, more than 220 exhibits were introduced at trial, in-
cluding receipts for fraudulent credit card purchases from
Home Depot, Sam’s Club and Wal-Mart totaling more than
$240,000, order forms for Home Depot telephone orders,
Sam’s Club membership forms, documents reflecting the
pickup of Sam’s Club membership cards, a Sam’s Club card
in a victim’s name containing Murry’s photograph, photo-
graphic negatives and prints of pictures taken when Murry
added himself as an authorized user to certain accounts,
videotapes of Murry making purchases, audiotapes of phone
calls, telephone records, receipts, and fingerprint evidence.
The links between Murry and the fraudulent purchases
were numerous. The receipts submitted into evidence were
all signed either “Darnel Murry” or “Dareal Murry.” Some
of the receipts contained Murry’s driver’s license or state
identification numbers. The photographs taken when Murry
added himself to certain of the accounts were labeled with
the name “Darael Murry.” Murry’s name (with either Dareal
or Darnel as the first name), address, phone number, driver’s
license number and his state identification number were
listed on documents identifying Murry as a secondary user
of credit cards belonging to others. Murry’s driver’s license
was photocopied multiple times by Sam’s Club employees
when he picked up secondary user cards at Sam’s Club
stores. The telephone numbers appearing on documents
identifying Murry as a secondary user of certain credit
cards and on Home Depot order forms as well as the phone
numbers used to access the credit card accounts were all
telephone lines and/or cell phones where Murry or someone
at his residence was the main subscriber.
All of this evidence was presented in the course of a two-
day trial. On the morning of the third day, the jury con-
vened at 9 a.m. to begin its deliberations. As we have
No. 03-2413 7
described above, the evidence left little to the imagination,
and the verdict was announced an hour and a half later.
The court sentenced Murry to 125 months’ imprisonment to
be followed by a three-year term of supervised release. The
court ordered restitution in the amount of $647,045.22
payable to GE Capital. This amount was based on the total
loss shown at trial as well as additional documentation
provided by GE Capital in the sentencing phase. Murry
appeals.
II.
On appeal, Murry contends that the district court erred
in instructing the jury that summary Exhibits 222 and 223
accurately reflected the underlying records, and that this
error plainly prejudiced the outcome of the trial. Murry also
maintains that the trial court abused its discretion by
admitting Exhibits 222 and 223 because there was no show-
ing on the record that the government had made the under-
lying documents available to the defendant for review, and
because the foundation for these exhibits was inadequate.
According to Murry, the admission of these exhibits pre-
judiced his substantive rights and he would not have been
convicted without this evidence. Murry also argues that the
court plainly erred when it allowed the government’s
fingerprint analyst to testify to the contents of Home Depot
and Sam’s Club business records. Murry also challenges the
admission of two of the fingerprint documents on the
grounds that they were not properly authenticated and be-
cause the government failed to present the chain of custody
from Sam’s Club to the government’s fingerprint expert.
Finally, Murry challenges the amount of restitution ordered,
arguing that the court erred in ordering restitution in part
for uncharged conduct.
8 No. 03-2413
A.
At trial, when the parties addressed the jury instructions
with the court, the district judge asked twice whether coun-
sel objected to any of the jury instructions. Murry’s counsel
replied, “Judge, I don’t object to anything.” Tr. at 409. He
then asked for a single change to an unrelated instruction
and the court modified the instruction per his request. The
government then requested a number of changes to the
instructions and after that colloquy, the court asked a sec-
ond time, “Are you in agreement with all of those?” Murry’s
counsel replied, “I do agree. That’s fine. Yes, your Honor.”
Tr. at 414. The government contends that this express
agreement with the jury instructions constitutes waiver of
any issue related to the jury instructions. Waiver precludes
appellate review, the government argues. Murry counters
that he did not intentionally relinquish any rights and
therefore, at worst, he forfeited the issue and we may review
it for plain error.
Waiver occurs when a defendant intentionally relinquishes
a known right. United States v. Staples, 202 F.3d 992, 995
(7th Cir. 2000). Waiver extinguishes the error and precludes
appellate review. United States v. Cooper, 243 F.3d 411, 415
(7th Cir.), cert. denied, 534 U.S. 825 (2001); Staples, 202 F.3d
at 995. Forfeiture occurs when a defendant negligently fails
to assert his or her rights in a timely fashion. Cooper, 243
F.3d at 415-16 (forfeiture is an accidental or negligent
omission, or an apparently inadvertent failure to assert a
right in a timely fashion); Staples, 202 F.3d at 995. In the
case of forfeiture, we may review a ruling for plain error.
Cooper, 234 F.3d at 415; Staples, 202 F.3d at 995. In this
case, Murry waived his objection to the jury instruction at
issue. The trial court asked Murry’s counsel twice whether
he had any objections to the instructions and twice he
replied definitively that he did not. He was thus aware that
he could lodge an objection and purposefully declined to do
so. We have found waiver in a number of similar instances
No. 03-2413 9
when the defendant or his attorney expressly declined to
press a right or make an objection. Cooper, 243 F.3d at 415;
United States v. Richardson, 238 F.3d 837, 841 (7th Cir.),
cert. denied, 532 U.S. 1057 (2001). In Richardson, the court
asked the defendant’s lawyer at a sentencing hearing
whether he had an objection to a particular sentencing
enhancement, and the lawyer said “no.” We found that
“[t]his was a waiver in the strict sense of the term, that is,
a deliberate relinquishment of a known right. As such it is
barred from receiving further judicial consideration.” 238
F.3d at 841. See also United States v. Redditt, 381 F.3d 597,
602 (7th Cir. 2004) (when trial counsel affirmatively stated
that he had no objection to the admission of certain evi-
dence, he has intentionally waived any argument to the
contrary); United States v. Pittman, 319 F.3d 1010, 1012
(7th Cir. 2003) (defendant waived an issue when trial
counsel affirmatively represented that he had no objection
to the admission of the evidence). Murry’s lawyer clearly
and affirmatively stated that he had no objection to the jury
instructions. Any objection was therefore waived and
appellate review is precluded.
B.
We turn to the district court’s admission of the summary
exhibits. Murry complains that the government did not lay
an adequate foundation for the admission of these exhibits
because it failed to make the underlying records available
to the defense before trial. Exhibits 222 and 223 were ad-
mitted into evidence under Federal Rule of Evidence 1006.
That rule provides:
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in
court may be presented in the form of a chart, sum-
mary, or calculation. The originals, or duplicates, shall
be made available for examination or copying, or both,
10 No. 03-2413
by other parties at [a] reasonable time and place. The
court may order that they be produced in court.
Fed. R. Evid. 1006. Murry argues that making the underly-
ing records available is a foundational requirement for the
admission of summaries under Rule 1006. He contends that
defense counsel was never provided with a list of the
documents on which Kellie Meador, the GE Capital employee
who prepared the exhibits, relied in creating Exhibits 222
and 223. Because of this, he continues, the district court
abused its discretion in admitting the summary documents.
The government disputes this foundation claim both fac-
tually and legally and also argues in the first instance that
Murry waived his objections to the admission of the sum-
mary charts. As a factual matter, the government points out
that nothing in the record supports Murry’s claim that the
underlying records were not made available to defense
counsel prior to trial. Moreover, because Murry did not
object at trial to the supposed absence of the underlying
records, the government never had an opportunity to dem-
onstrate on the record that it had in fact made the records
available. The government contends that no precedent re-
quires the government to demonstrate on the record that it
had complied with its pre-trial discovery obligations under
Rule 1006. The record on direct appeal cannot resolve this
factual dispute regarding whether the government made
the underlying documents available to Murry’s lawyer
before trial.
That deficiency in the record, though, does not preclude
us from considering the government’s claim that Murry
waived his objection to the admission of the summary charts.
According to the government, Murry’s lawyer did not raise
any objections to the charts at trial but instead affirma-
tively stated he had no objection to the admission of the
exhibits. A quick review of the record confirms the govern-
ment’s portrayal of the admission of Exhibits 222 and 223.
No. 03-2413 11
During its direct examination of Meador, the government
asked a number of foundation-based questions. The pros-
ecutor asked Meador, among other things, what records she
used in preparing the exhibits, whether those records were
kept in the ordinary course of business, whether the records
were created at the time of the events reflected in them,
and whether the summary charts accurately summarized
GE Capital business records. Tr. at 126-28. In light of
Meador’s affirmative responses to the key foundational
questions, the government moved to admit Exhibits 222 and
223. Tr. at 128. In response to this motion, Murry’s attorney
stated, “No objection, your Honor.” Tr. at 128. Additionally,
at sentencing, the government presented two summary
charts and the court asked Murry’s attorney, “Do you wish
to contest the foundation or admissibility of the government’s
summary charts? One of which was admitted into evidence
at trial?” Murry’s attorney replied, “Judge, no, those were
summaries of the documents. So far as the admissibility, I
would have no basis for an objection for that.” Sentencing
Tr. at 3. Later in the same colloquy, Murry’s attorney chal-
lenged the weight to be given to the summary exhibits and
in particular challenged whether the phone numbers listed
on the exhibits truly linked Murry to the crime, but he
expressly did not challenge admissibility.
These two exchanges make clear that Murry’s attorney
knew he could object to the admission of the summary charts
and purposefully declined to do so, in the latter instance
also expressing the belief that he had no good faith basis to
object. Indeed, counsel affirmatively stated he had no ob-
jection after the government asked a series of familiar
foundational questions. These questions, combined with the
court’s query, served to put counsel on notice that now was
the time to raise foundational objections. He expressly
declined to do so. Neither exchange with the court (during
trial or at sentencing) could be interpreted as an accidental
or negligent omission of an objection, or an apparently
12 No. 03-2413
inadvertent failure to assert a right in a timely fashion. We
therefore find that Murry waived his objections to the
admissibility of Exhibits 222 and 223, and we decline to
review the district court’s decision. Redditt, 381 F.3d at 602;
Pittman, 319 F.3d at 1012.
C.
Murry next argues that the district court plainly erred
when it allowed Robert Schumann, the government’s finger-
print expert, to testify to the contents of Home Depot and
Sam’s Club business records. According to Murry,
Schumann testified about the contents of Exhibits 182, 212,
214 and 216 as business records of Home Depot and Sam’s
Club. Exhibit 182 is a Home Depot customer pick-up
confirmation slip signed by Horatio Jones to acknowledge
receipt of a load of hardwood flooring and a power tool.
Exhibit 212 is a Sam’s Club credit card receipt for general
merchandise in the amount of $1911.26. Exhibit 214 is a
Sam’s Club credit card pre-print checklist together with a
photocopy of Darnell Murry’s State of Illinois identification
card. Exhibit 216 is another Sam’s Club credit card receipt
for general merchandise in the amount of $330.82. Murry
complains that Schumann was not qualified to lay a foun-
dation for these documents as business records. He further
contends that Exhibits 212 and 216 were never authenti-
cated. According to Murry, the government never presented
any admissible evidence to support a finding that Exhibits
212 and 216 were actually receipts from Sam’s Club, and
never presented a chain of custody for these exhibits.
At trial, Schumann identified these and other exhibits as
documents he had been given to test for fingerprints. Tr. at
259. He testified that for each of these four exhibits, he
matched the documents to a list of evidence provided to him
by the Secret Service, checking the Secret Service’s descrip-
tion of the document to the actual document before testing
No. 03-2413 13
for fingerprints. The government points out that these four
exhibits were simply originals of photocopied exhibits that
had already been admitted into evidence without objection
as business records of Sam’s Club and Home Depot. When
the government moved to admit Exhibits 182, 212, 214 and
216 into evidence (with a larger group of documents exam-
ined by Schumann), the court inquired whether Murry’s
attorney had any objections to admissibility and he replied,
“No, your Honor.” Once again, after a series of questions
that related to foundation, the court solicited objections and
Murry’s attorney expressly asserted he had no objection to
admissibility. Moreover, photocopies of these exhibits had
already been admitted into evidence without objection. As
with the other instances, we find that Murry waived his
objection to the admission of these exhibits. Our review is
therefore precluded.
As for the challenges to Schumann’s testimony about
the content of these exhibits, Murry failed to object to this
testimony and we therefore review its admission for plain
error only. The transcript reveals that the focus of
Schumann’s testimony was not on the content of the doc-
uments but on the presence of Murry’s fingerprints on the
papers. Schumann’s testimony about the content of the ex-
hibits was limited to comparing the documents to the Secret
Service’s list describing each piece of evidence to verify that
he was reviewing the correct exhibits. He simply verified
that he was testing the right piece of paper. We find no plain
error in the district court’s admission of this testimony.
D.
Finally, we consider Murry’s argument regarding the
amount of restitution ordered by the district court at sen-
tencing. Murry contends that the court lacked the authority
to order restitution for uncharged conduct. At trial, Murry
argues, the government proved GE Capital’s losses to be
14 No. 03-2413
$240,968.75. At sentencing, when ordering restitution, the
district court added on to that figure an amount repre-
senting losses from other conduct, some during the period
covered by the indictment and some from outside the time
limits of the indictment. According to Murry, restitution
ordered under the Mandatory Victim’s Restitution Act
(“MVRA”) is limited to losses caused by the charged conduct.
Murry insists that the district court was thus limited in
ordering restitution to the losses proved at trial. According
to Murry, any other losses were not part of the offense of
conviction and the district court lacked authority to order
restitution of those amounts.
The government does not contest a limited modification
of the restitution order. Murry was charged in a two-count
indictment, the first count for interstate transportation of
goods obtained by fraud, and the second count for access
device fraud. Count Two specifically charged:
From in or about April 2002 until on or about
October 31, 2002, at Chicago, in the Northern District
of Illinois, Eastern Division, and elsewhere, DARNELL
MURRY, defendant herein, did knowingly and with in-
tent to defraud use and cause to be used one or more
unauthorized access devices, and by such conduct ob-
tained things of value aggregating $1,000 or more during
a one year period, thereby affecting interstate com-
merce[.]
R. 40. The $240,968.75 proved at trial related to transac-
tions occurring between March 28, 2002 and October 31,
2002. At sentencing, a summary chart prepared by GE Capital
and provided by the government showed $654,046.72 in
actual losses between December 29, 2001 and October 31,
2002. At the time of his arrest, Murry possessed $3001.50,
which the district court ordered applied to restitution at
sentencing. The net restitution ordered at sentencing was
No. 03-2413 15
$647,054.22.2 The government now acknowledges that
$88,888.11 of those losses related to transactions occurring
prior to April 2002, the date charged in the indictment.
Without conceding error, the government waives any argu-
ment about that amount of restitution for the purposes of
the appeal. The government asks that we remand the case
so that the district court may adjust the amount of restitu-
tion downward by $88,888.11.
At sentencing, Murry did not object to the amount of the
restitution ordered. We therefore review this claim for plain
error. United States v. Randle, 324 F.3d 550, 555 (7th Cir.
2003). The district court ordered restitution pursuant to the
MVRA. See 18 U.S.C. §§ 3663A and 3664. Section 3664
provides the procedure for issuance and enforcement of an
order of restitution. The first step is for the district court to
order the probation officer to obtain a complete accounting
of the losses to each victim of the crime. 18 U.S.C. § 3664(a).
Section 3664 also supplies the procedure for resolving
disputes about the appropriate amount of restitution to be
ordered:
Any dispute as to the proper amount or type of restitu-
tion shall be resolved by the court by the preponderance
of the evidence. The burden of demonstrating the amount
of the loss sustained by a victim as a result of the of-
fense shall be on the attorney for the government.
2
Both the text of the PSR and the summary chart attached to it
list the amount of the actual loss as $654,046.72. For reasons not
apparent from the record, the district court stated that the PSR
showed actual loss in the amount of $650,046.72, exactly $4000
less than actually reported in the PSR. When the district court
calculated the amount of restitution at the sentencing hearing, the
court started with the lower figure ($650,046.72) and subtracted
the $3001.50 recovered from the defendant to reach the final
amount ordered for restitution.
16 No. 03-2413
18 U.S.C. § 3664(e). The plain language of this provision
belies Murry’s claim that the district court was limited to
the amount of loss proved at trial in determining the
amount of restitution, and we reject that reading of the
MVRA. See United States v. Acosta, 303 F.3d 78, 89 (1st Cir.
2002) (finding no plain error where the district court
included as restitution amounts from transactions sup-
pressed at trial but still part of the offense of conviction).
Although the court is not limited to losses proved at trial,
restitution is limited to the losses caused by charged
conduct, i.e. the offense of conviction. Randle, 324 F.3d at
556; United States v. Scott, 250 F.3d 550, 553 (7th Cir. 2001).
Restitution may not be ordered for relevant conduct. Scott,
250 F.3d at 553; United States v. Menza, 137 F.3d 533, 537
(7th Cir. 1998). In Murry’s case, the indictment spells out
the charged conduct broadly, including multiple uses of un-
authorized access devices between April 2002 and October
31, 2002. The Presentence Investigation Report (“PSR”) sets
forth the losses proved at trial as $240,968.75. Citing the
additional summary charts provided to the government by
GE Capital during the sentencing phase, the PSR states,
“According to the government, the total actual loss combined
with the relevant conduct is $654,046.72, and the intended
loss was $680,650.00.”3 The probation officer thus recom-
mended that the court order restitution in the amount of the
actual losses, $654,046.72. At the sentencing hearing, the
3
Some of Murry’s transactions were rejected by the stores before
he was able to pick up the merchandise, accounting for some of
the difference between the actual and intended losses. The gov-
ernment returned to the stores merchandise seized at the time of
the arrest, accounting for the rest of the difference between actual
and intended losses. Based on the government’s representations
and the evidence provided by GE Capital, the probation officer
determined the value of the loss for sentencing purposes to be
$680,650.00.
No. 03-2413 17
district court stated, “The restitution amount originally in the
presentence report was $650,046.72. However, that will be
reduced because of the application of the seized funds to the
restitution amount. What is the balance then due?” The
probation officer responded, “$647,045.22.” Sentencing Tr. at
26. As we noted above, the record does not reveal the reason
for the discrepancy between the actual loss figure given in
the PSR and the district court’s representation of that
number at sentencing; the numbers differ by exactly $4000.
In any case, the district court clearly was basing the
amount of restitution on the recommendation in the PSR.
That recommendation was in turn based on the charts
provided by GE Capital.
The probation officer characterized the $654,046.72
total as representing “total actual loss combined with the
relevant conduct.” The PSR does not specify what part of
that loss was caused by the offense of conviction and what
part was caused by relevant conduct. The government has
already waived any argument relating to $88,888.11 in
actual losses sustained before the time period covered by
the indictment. It is unclear from the PSR how much of the
remaining loss calculation arises from the offense of
conviction and how much can be attributed to relevant
conduct, and restitution may not be ordered for relevant
conduct. We therefore vacate the restitution award and
remand to the district court to determine the amount of the
loss that may be attributed to the charged conduct, and to
adjust the amount of restitution accordingly. Given the
government’s waiver, the amount of restitution should be
reduced by $88,888.11 and then further reduced by any
amount that the court concludes was due to relevant conduct
rather than the offense of conviction. Finally, the court on
remand will have the opportunity to clarify whether the
starting figure for actual loss should be $654,046.72 or
$650,046.72.
AFFIRMED IN PART, VACATED and REMANDED IN PART.
18 No. 03-2413
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-3-05