United States v. Santos ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10470
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00201-GEB
ROMMEL SANTOS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted
March 12, 2008—San Francisco, California
Filed June 6, 2008
Before: Stephen Reinhardt, John T. Noonan, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Reinhardt
6403
UNITED STATES v. SANTOS 6405
COUNSEL
Daniel Broderick, Federal Defender; Ned Smock, Assistant
Federal Defender, Office of the Federal Defender, Sacra-
mento, California, for the defendant-appellant.
McGregor W. Scott, United States Attorney; Ellen V.
Endrizzi, Assistant United States Attorney, Sacramento, Cali-
fornia, for the appellee.
OPINION
REINHARDT, Circuit Judge:
Rommel Santos appeals his sentence of 77 months follow-
ing his plea of guilty to possession of stolen mail, possession
and utterance of a forged security, and conspiracy. The
6406 UNITED STATES v. SANTOS
charges stemmed from Santos’s involvement in a counterfeit
checking scheme in which he and his co-conspirator used
checks stolen from the mail as templates to produce counter-
feit checks, which they would then recruit other individuals to
cash. Santos argues that the district court erred in using the
total face value of the stolen checks, rather than the counter-
feit checks, to determine intended loss for the purposes of a
sentencing enhancement under § 2B1.1(b)(1) of the United
States Sentencing Guidelines (“U.S.S.G.”). Adopting the
approach of the Eleventh Circuit in United States v. Grant,
431 F.3d 760 (11th Cir. 2005), we hold that, in cases such as
this, a district court may reasonably infer, absent a showing
to the contrary, that the defendant intended to cause loss up
to the full face value of the stolen checks. Because the district
court did not clearly err in finding that Santos intended to
cash counterfeit checks up to the face amount of the stolen
checks, we affirm its application of a 12-level enhancement
under § 2B1.1(b)(1)(G).1
I. Background
In August 2004, co-defendant Kevin Eisert delivered to
Santos a batch of mail he had recently stolen, which included
bank statements and checks from a number of businesses.
Santos brought the stolen checks to an individual known as
“Cowboy,” who at various times made counterfeit checks
from them. Santos and Cowboy would then recruit other indi-
viduals to cash the counterfeit checks, offering the recruits
50% of the amount cashed and keeping 50% for themselves
to be split evenly between them.
A month later, Santos and Cowboy recruited a woman
named Laurane Ivey to cash a counterfeit check. The three
1
Santos also challenges the district court’s application of a two-level
aggravating role enhancement under U.S.S.G. § 3B1.1(c). We dispose of
that issue in a separate memorandum disposition, filed concurrently with
this opinion.
UNITED STATES v. SANTOS 6407
drove to an apartment complex, where Cowboy created a
check in Ivey’s name. Ivey then drove both men to a check
cashing store, where she was arrested attempting to cash the
check. Cowboy and Santos fled the scene. In a search of
Ivey’s trunk, the police discovered stolen mail, counterfeit
checks, incomplete counterfeit ID’s, and Cowboy’s computer
and check-production equipment, all of which Cowboy and
Santos had placed there before leaving the apartment com-
plex. Ivey identified Santos from one of the ID’s found in the
trunk. He was arrested several weeks later and gave a full
Mirandized confession to the arresting officers.2 He also con-
sented to a search of his van, where officers discovered more
stolen mail and counterfeit checks.
Santos pled guilty to conspiracy, possession of stolen mail,
and possession and utterance of a forged security. At his sen-
tencing hearing, Santos challenged the Presentence Report’s
(“PSR”) recommendation of a 12-level enhancement pursuant
to § 2B1.1(b)(1)(G) for an intended loss of more than
$200,000 but not more than $400,000. The PSR calculated
Santos’s intended loss to be approximately $295,000, which
comprised the total face value of both the stolen checks and
the counterfeit checks recovered by the police. Santos
objected to the inclusion of the stolen checks in the loss calcu-
lation, arguing that he and his cohorts never intended to cash
the stolen checks but only to use them to obtain the informa-
tion necessary to create counterfeit checks. Thus, he argued,
the intended loss calculation should include only the face
value of the counterfeit checks.3 The government, in turn,
argued that the intended loss should include the face value of
both the stolen checks and the counterfeit checks because all
of the checks were potentially negotiable and Santos’s contin-
ued possession of them evinced an intent to cash them.
2
Eisert had been arrested previously when he attempted to cash a coun-
terfeit check at Wal-Mart. Cowboy was never apprehended.
3
The counterfeit checks recovered totaled $54,464.65, which would
have yielded a 6-level increase under § 2B1.1(b)(1)(D).
6408 UNITED STATES v. SANTOS
The district court followed neither Santos’s nor the govern-
ment’s recommendations for calculating intended loss.4
Rather, the district court inferred from the evidence—
specifically, the facts that all of the checks recovered were
“potentially negotiable,” that Santos and Cowboy “had the
materials and equipment for counterfeiting checks,” and that
“their scheme included recruiting people who could cash
them”—that Santos intended “to cash as many counterfeit
checks as could be cashed, at least until the full face value of
the stolen checks was obtained.” The district court further
explained that the “only evidence indicating Santos did not
intend to take the full face value of the [stolen] checks . . . ,
if he could have done so under the scheme, is his own testi-
mony, which I do not credit on this point.”5 Thus, it con-
cluded, “it is reasonable to estimate an intended loss of
$229,000,” the face value of the stolen checks. On the basis
of this calculation, the district court increased Santos’s base
offense level by 12 levels pursuant to § 2B1.1(b)(1)(G). San-
tos timely appealed.
II. Standard of Review
We review a district court’s method of calculating loss de
novo. United States v. Hardy, 289 F.3d 608, 613 (9th Cir.
2002); United States v. W. Coast Aluminum Heat Treating
Co., 265 F.3d 986, 990 (9th Cir. 2001). We review the district
court’s determination of the amount of loss for clear error.
United States v. Zolp, 479 F.3d 715, 718 (9th Cir. 2007); West
Coast Aluminum, 265 F.3d at 990.
4
Nevertheless, the district court’s loss calculation resulted in the same
offense level increase as would have occurred had it followed the govern-
ment’s recommendation, as both amounts were at least $200,000 but less
than $400,000.
5
The district court was referring to Santos’s testimony at an evidentiary
hearing, held prior to the sentencing hearing, at which he stated that he
and his cohorts intended to take only about $2,000 to $3,000 from each
account for which they had bank information because any higher amount
would have drawn attention to them.
UNITED STATES v. SANTOS 6409
III. Discussion
The sentencing guideline governing fraud and theft
offenses provides for incremental increases in the defendant’s
offense level based upon the amount of loss. See U.S.S.G.
§ 2B1.1(b)(1). The commentary accompanying this provision
defines “loss” as “the greater of actual or intended loss,” id.
§ 2B1.1 cmt. n. 3(A), with “actual loss” defined as “the rea-
sonably foreseeable pecuniary harm that resulted from the
offense,” id. § 2B1.1 cmt. n.3(A)(i), and “intended loss”
defined as “the pecuniary harm that was intended to result
from the offense,” including “intended pecuniary harm that
would have been impossible or unlikely to occur,” id. § 2B1.1
cmt. n.3(A)(ii). The government bears the burden of proving
loss for the purposes of § 2B1.1 by a preponderance of the
evidence. United States v. Zuniga, 66 F.3d 225, 228 (9th Cir.
1995). However, the district court is not required to calculate
loss “with absolute precision,” Zolp, 479 F.3d at 719, but
“need only make a reasonable estimate of the loss,” U.S.S.G.
§ 2B1.1 cmt. n.3(C). There is no dispute in this case that the
intended loss was greater than the actual loss; the sole ques-
tion, therefore, is the amount of intended loss.
[1] Santos argues that the district court erred in basing its
intended loss calculation on the face value of the stolen
checks, rather than on the counterfeit checks recovered.
Whether a district court may use the face value of stolen
checks in estimating the intended loss of a counterfeit scheme
is a matter of first impression in this circuit. The Eleventh Cir-
cuit has decided a case directly on point, however, and the
Third Circuit has considered a case in analogous circum-
stances. We agree with the approach taken by those circuits.
[2] In United States v. Grant, 431 F.3d 760 (11th Cir.
2005), the defendant was convicted of participating in a
scheme essentially identical to Santos’s—the only difference
was that Grant’s scheme involved using photocopies of real
corporate checks as templates for counterfeiting, whereas
6410 UNITED STATES v. SANTOS
Santos and his associates possessed the stolen checks them-
selves. Id. at 761, 763 n.4. Like Santos, Grant objected to the
district court’s inclusion of the photocopied checks in the cal-
culation of intended loss. Id. at 761. The Eleventh Circuit
found that the evidence presented—namely, that Grant admit-
ted that the purpose of the photocopied checks was for use as
templates for counterfeiting, that the photocopies provided
Grant information about the companies’ account balances,
and that the police had “seized numerous blank counterfeit
checks and several boxes of check stock paper from Grant’s
apartment,” id. at 764—all “circumstantially support[ed] the
conclusion Grant intended to utilize the full face value
appearing on the photocopies of the . . . checks,” id. Further-
more, Grant “fail[ed] to proffer any evidence indicating his
intent to use less than the full face value of the stolen corpo-
rate checks.” Id. at 765. Thus, the court concluded, the district
court did not clearly err in finding that Grant intended to take
up to the full face value of the stolen checks. Summarizing its
rule, the Eleventh Circuit stated:
To be clear, we hold when an individual possesses
a stolen check, or a photocopy of a stolen check, for
the purpose of counterfeiting, the district court does
not clearly err when it uses the full face value of that
stolen check in making a reasonable calculation of
the intended loss. Although a district court cannot
equate the full face value of stolen checks with
intended loss as a matter of law in every case, it can
still find a defendant intended to utilize the full face
value of stolen checks. Where the Government pre-
sents evidence indicating the defendant intended to
utilize the full face value of the checks, and the
defendant fails to present countervailing evidence, a
district court is especially justified in including the
checks’ full face value in its intended loss calcula-
tion.
Id.UNITED STATES v. SANTOS 6411
[3] The Eleventh Circuit in Grant relied in part on the
Third Circuit’s decision in an analogous case, United States
v. Geevers, 226 F.3d 186 (3d Cir. 2000), which we also con-
sider instructive. Geevers’s conviction stemmed from a
check-kiting scheme in which he would open a new bank
account with an invalid check, then withdraw a portion of the
deposit before the bank discovered that the funds were not
backed. Id. at 188-89. Geevers challenged the district court’s
use of the total face value of the deposited checks in calculat-
ing the intended loss, arguing that he did not intend to with-
draw the full amount because he knew that he could not have
succeeded in doing so, and that the government did not prove
that he intended to take the full amount. Id. at 189. The Third
Circuit found that the district court was justified in inferring
that Geevers “would likely have taken the full amount of the
deposited checks if that were possible.” Id. at 193. It
explained:
To assume that Geevers did not want it all is to
assume that had one of the banks somehow failed to
detect his fraud and started sending Geevers monthly
balance reports, Geevers would have refrained from
taking any more of the money. Given Geevers’s con-
duct, the District Court could reject this proposition
as unlikely. Though he may not have expected to get
it all, he could be presumed to have wanted to.
Id. Although Geevers was “free to come forward with evi-
dence to demonstrate that he actually intended something
less,” id., he failed to do so. Thus, the Third Circuit con-
cluded, the district court did not clearly err in including the
full amount of the deposited checks in Geevers’s intended
loss calculation. Id.[4] We agree with the approach of the Third and Eleventh
Circuits. Absent evidence to the contrary, the district court
may reasonably infer that the participants in a counterfeiting
scheme intend to take as much as they know they can. Thus,
6412 UNITED STATES v. SANTOS
where the scheme involves using stolen checks as templates
for counterfeiting, the face value of the stolen checks is “pro-
bative” of the defendants’ intended loss, as it is the amount
that the participants know is in the accounts from which they
are drawing.6 See Geevers, 226 F.3d at 194. The district court
may not “mechanically assume[ ]” that the face value of the
stolen checks is the intended loss, however. Id. Rather, it must
consider the evidence, if any, presented by the defendant
tending to show that he did not intend to produce counterfeit
checks up to the full face value of the stolen checks.7
[5] Here, the district court reasonably inferred, based on the
nature of the counterfeiting scheme and the fact that Santos
6
The government emphasized Santos’s continued possession of the
stolen checks as evidence of his intent to cause loss up to their face value.
This argument is misplaced. The district court did not find that Santos
intended to cash the stolen checks themselves but rather that he used the
stolen checks as templates for producing counterfeit checks. Given the
nature of this counterfeiting scheme, then, the crucial point is not that San-
tos possessed the checks but that the checks gave him knowledge of
amounts of funds in the bank accounts. Thus, the loss calculation would
have been the same had Santos photocopied the stolen checks, as did the
defendant in Grant, 431 F.3d at 761, or simply copied the account infor-
mation and dollar values in a notebook and then discarded the stolen
checks.
7
The Third Circuit suggested the following example of how a defendant
might show that his intended loss was less than the full amount:
[I]f a man needed $10,000 for surgery for his wife and sought to
acquire the sum by engaging in a check kite, he might make a
worthless deposit of $50,000 in order to inflate his “balance” to
a high enough level that the bank would honor a $10,000 check.
Such a defendant would likely be able to demonstrate that his
subjective intent was only to take $10,000.
Geevers, 226 F.3d at 194. Other evidence to support a finding that the
defendant in a counterfeiting case did not intend to exploit the full amount
might include: evidence that the defendant was no longer a part of the
counterfeiting scheme; evidence that a long period of time had elapsed
since the defendant had produced or cashed any counterfeit checks; or evi-
dence that the defendant had destroyed or discarded his check-producing
equipment and the stolen bank account information.
UNITED STATES v. SANTOS 6413
and Cowboy still possessed the materials and equipment for
counterfeiting checks at the time their scheme was discov-
ered, that Santos intended to cash as many counterfeit checks
as he could, at least up to the amount of the stolen checks.
The only evidence that Santos produced to show that he
intended less than this amount was his own testimony at the
evidentiary hearing that he and his co-conspirators planned to
take only $2,000 to $3,000 from each account. The district
court explicitly discredited Santos’s testimony on this point,
however, and we “give special deference to the district court’s
credibility determinations.” United States v. Haswood, 350
F.3d 1024, 1028 (9th Cir. 2003). Accordingly, we hold that
the district court did not clearly err in using the full face value
of the stolen checks to calculate Santos’s intended loss.
Santos argues that a finding of intent must be based on the
defendant’s affirmative acts and that here the only affirmative
steps taken were the creation of the counterfeit checks. Thus,
he contends, his intended loss should be the face value of the
counterfeit checks actually produced, not the face value of the
stolen checks. We disagree. The government is not required
to produce direct evidence of the defendant’s intent; rather, it
may provide circumstantial evidence from which the district
court can draw reasonable inferences. Cf. In re Slatkin, No.
06-56334, ___ F.3d ___, ___, 2008 WL 1946739, at *3 (9th
Cir. May 6, 2008) (explaining that because “direct proof of
fraudulent intent is rarely available[,] . . . courts allow a find-
ing of fraudulent intent based on circumstantial evidence”).
Here, the government presented evidence that Santos and his
cohorts were using the information from the stolen checks to
produce counterfeit checks and recruiting others to cash them,
and that they still possessed the check producing materials at
the time their scheme was discovered. It was reasonable for
the district court to infer from this evidence that they would
have continued to produce and cash counterfeit checks had
they not been caught. To restrict the district court’s loss calcu-
lation to the face value of the counterfeit checks would
require the court to assume that Santos and his associates
6414 UNITED STATES v. SANTOS
would not have produced or attempted to cash any more coun-
terfeit checks than those that had already been made, even if
they had never been caught. Not only is such a circumstance
unlikely, but it is belied by the fact that Santos and Cowboy
produced a new counterfeit check for Laurane Ivey on the
very morning that their scheme was discovered.
[6] In sum, we hold that, absent countervailing evidence
showing that the defendant intended to take less, a district
court may reasonably infer, for the purposes of calculating
intended loss under U.S.S.G. § 2B1.1(b)(1), that a participant
in a counterfeiting scheme intends to take up to the full face
amount of the stolen checks on which the counterfeit checks
are based. Given the nature of Santos’s counterfeit scheme, as
well as the lack of evidence that he intended to stop short of
the full face amount, the district court did not clearly err in
finding that Santos intended to cause loss in the amount of
$229,000, the face value of the stolen checks.
AFFIRMED.