United States v. Shawn Swor

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30250
Plaintiff-Appellee,
D.C. No.
v. 9:11-cr-00057-
DWM-2
SHAWN ANTHONY SWOR,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
May 10, 2013—Portland, Oregon
Filed August 27, 2013
Before: Alex Kozinski, Chief Judge, and Marsha S.
Berzon, and Andrew D. Hurwitz, Circuit Judges.
Per Curiam Opinion
2 UNITED STATES V. SWOR
SUMMARY*
Criminal Law
The panel affirmed in part and vacated in part a sentence
imposed after the defendant pled guilty to one count of
investment fraud in violation of 18 U.S.C. § 1343, and
remanded.
The panel held that the district court abused its discretion
by including in the restitution order losses suffered by victims
who entrusted Eric Schultz to invest in an investment scheme
touted by Dan Two Feathers on the ground that the defendant
had introduced Schultz to Two Feathers some months earlier.
The panel reasoned that intervening events made the
defendant’s connection to Schultz’s losses in that scheme –
which began two months after, and was separate from, the
scheme in which the defendant was involved – too attenuated
to impose liability on the defendant for Schultz’s victims’
losses.
The panel held that the district court did not clearly err in
finding that the defendant failed to establish that he played a
minor role in the offense.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SWOR 3
COUNSEL
Timothy M. Bechtold (argued), Bechtold Law Firm, PLLC,
Missoula, Montana, for Defendant-Appellant.
Carl E. Rostad (argued) and J. Bishop Grewell, Assistant
United States Attorneys; Michael W. Cotter, United States
Attorney, United States Attorney’s Office, Great Falls,
Montana, for Plaintiff-Appellee.
OPINION
PER CURIAM:
Shawn Anthony Swor appeals from the sentence imposed
after he pled guilty to one count of investment fraud in
violation of 18 U.S.C. § 1343. We affirm the sentence in part
and vacate in part.
I.
Swor was a mortgage broker. In February 2008, he, Dan
Two Feathers, and Terrence Paulin founded DTF Consulting
Group to lure investors to “high yield” opportunities, using
“leveraged investment and securities programs.” Essentially,
DTF advertised that it would leverage modest investments to
secure much larger lines of credit and invest loan proceeds in
government securities, which DTF would buy at a discount
and sell at a premium, using its ostensible “connections in the
world of international finance.” At Two Feathers’ direction,
Paulin created a fraudulent $1.5 billion letter of credit “to
entice potential investors.” During DTF’s short existence,
4 UNITED STATES V. SWOR
each of the company’s founders traveled the country to
promote the scheme and boast of its “extremely high returns.”
One potential investor intrigued by the scheme was Eric
Schultz, whom Swor introduced to Two Feathers in March
2008. Schultz remained on the sidelines for a time, staying
in close contact with Two Feathers about the securities’ rates
of returns without making an investment.
DTF met its demise soon after Two Feathers tried to rely
on the fraudulent letter of credit when purchasing a $13
million home. After a realtor raised suspicions, the FBI
seized the letter. Swor and Paulin thereupon severed ties with
Two Feathers and stopped promoting the DTF scheme in
June 2008. By the time DTF dissolved, Swor had personally
received $208,017.55 from investors’ contributions to DTF.
With Swor and Paulin out of the picture, Two Feathers
used a new “front company,” TLT Holdings, to tout “his
investment scheme.” In the meantime, Schultz founded his
own “Joint Venture Capital Program,” modeled after Two
Feathers’ investment “strategy.” In August 2008, Two
Feathers reached out to Schultz to promote TLT, specifically
advising that he no longer worked with Swor, Paulin, or DTF.
Two Feathers’ pitch was that TLT’s “expected rates of return
were more realistic and conservative than” DTF’s. TLT’s
plan was to use various security companies to buy and sell
Treasury Bills “stripped of their interest payments.” Schultz
was finally satisfied that Two Feathers “seemed to have his
business affairs in order,” and transferred $200,000 — money
pooled from Schultz’s own investors — to TLT’s Bermuda
account.
UNITED STATES V. SWOR 5
Like Swor, Schultz, Two Feathers, and Paulin were all
eventually convicted of investment fraud for their roles in the
respective schemes.1 On appeal, Swor argues that the district
judge should have given him a “minor role” sentencing
reduction and that the judge miscalculated how much he
should pay in restitution.
II.
The district court ordered Swor to pay $747,345.11 in
restitution, pursuant to the Mandatory Victims Restitution
Act of 1996 (MVRA), 18 U.S.C. § 3663A, stating:
Mr. Swor is the one who introduced — for
whatever reason introduced Mr. Schultz to
Mr. Two Feathers. And it’s also clear that
Mr. Swor and Mr. Schultz had been in prior,
for want of a better term, business
relationships. And it’s clear that in the
absence of the introduction, knowing full well
what was going on, that Mr. Schultz would
not have been a part of the scheme with DTF.
Without the introduction, without his
knowledge, and without the prior association,
I don’t believe that there would have been
anything other than serendipity that would
have gotten Mr. Schultz connected with Mr.
Two Feathers.
1
See United States v. Two Feathers, No. 12-30222, 2013 WL 1987371(9th Cir. May 15, 2013) (affirming sentence); United States v. Paulin, No.
11-cr-57 (D. Mont.); United States v. Schultz, No. 10-cr-45 (D. Mont.).
6 UNITED STATES V. SWOR
Consequently, I think that he is responsible
for anything that’s foreseeable. And I think it
certainly is foreseeable that Mr. Schultz,
regardless of the source of his money, was
going to engage in the investment in the
scheme for the high rate of return promised,
particularly in light of other representations.
It’s certainly foreseeable that he would invest
and, indeed, he did.2
Swor challenges only the inclusion of $166,887.09 to be
disbursed to those on whose behalf Schultz invested in Two
Feathers’ TLT scheme.3
Under the MVRA, restitution “may be awarded only for
losses for which the defendant’s conduct was an actual and
proximate cause.” United States v. Kennedy, 643 F.3d 1251,
1261 (9th Cir. 2011) (internal quotation marks omitted)
(emphasis added); see 18 U.S.C. § 3663A(a)(2) (defining
“victim” as “a person directly and proximately harmed”).
“But for” cause is insufficient. See, e.g., Kennedy, 643 F.3d
at 1261; United States v. Speakman, 594 F.3d 1165, 1171
(10th Cir. 2010); United States v. Robertson, 493 F.3d 1322,
1334 (11th Cir. 2007); United States v. Cutter, 313 F.3d 1, 7
(1st Cir. 2002).
We have interpreted the similarly worded Victim and
Witness Protection Act of 1982 to require that “‘the
2
In fact, as noted, Schultz did not invest in the DTF scheme.
3
From his $200,000 investment in TLT, Schultz’s victims have already
recovered $33,112.91 from one of Two Feathers’ bank accounts, frozen
by the State of Montana.
UNITED STATES V. SWOR 7
government . . . show not only that a particular loss would not
have occurred but for the conduct underlying the offense of
conviction, but also that the causal nexus between the conduct
and the loss is not too attenuated (either factually or
temporally).’” United States v. Gamma Tech Indus., Inc.,
265 F.3d 917, 928 (9th Cir. 2001) (alteration omitted)
(quoting United States v. Vaknin, 112 F.3d 579, 590 (1st Cir.
1997)); see 18 U.S.C. § 3663(a)(2) (defining “victim” as “a
person directly and proximately harmed”). Although “[t]here
may be multiple links in the causal chain” “between the
defendant’s offense conduct and the victim’s specific losses,”
“the chain may not extend so far . . . as to become
unreasonable.” Kennedy, 643 F.3d at 1262–63 (internal
quotation marks omitted). Moreover, “any . . . intervening
cause[] must be directly related to the defendant’s conduct.”
Id.The district court held Swor accountable in its restitution
order for the losses of Schultz’s victims as a result of their
entrusting Schultz to invest in Two Feathers’ TLT scheme —
a scheme that began two months after, and was separate in its
participants, “front” entity, and operational details from the
one in which Swor was involved — on the ground that Swor
had introduced Schultz to Two Feathers some months earlier.
But as far as the record shows, before Schultz made the
investment, and before Two Feathers put together the TLT
scheme at issue, Swor and Two Feathers had severed ties.
“[T]he causal nexus between [Swor’s] conduct and
[Schultz’s] loss,” see Gamma Tech, 265 F.3d at 928,
amounted, essentially, to introducing two people to each other
in the course of carrying out a fraudulent scheme, where the
two later, and independently, became involved in a separate,
operationally different fraudulent scheme.
8 UNITED STATES V. SWOR
This connection certainly established the introduction of
Schultz to Two Feathers as a “but for” cause of Schultz’s
involvement in the TLT scheme; had the introduction never
occurred, there is little likelihood that Two Feathers would
have reached out to Schultz regarding the TLT scheme or that
Schultz would have accepted the invitation. But the
intervening events — the dissolution of DTF, the severance
of a business connection between Two Feathers and Swor,
Two Feathers’ independent decision once again to promote a
somewhat different fraudulent securities scheme, and Swor’s
lack of involvement in the resulting TLT scheme, including
the invitation to Schultz to participate in that scheme — made
Swor’s connection to Schultz’s losses (actually, that of his
victims) in the TLT scheme simply “too attenuated” to
impose liability on Swor for Schultz’s victims’ losses. See id.The district court therefore abused its discretion in
including the $166,887.09 sum in Swor’s restitution order.
United States v. Lazarenko, 624 F.3d 1247, 1249 (9th Cir.
2010). We accordingly vacate the sentence with regard to the
amount of restitution ordered and remand for the limited
purpose of entering an amended restitution order, not to
exceed $580,548.02.
III.
Swor co-founded DTF, traveled to promote the scheme to
potential investors, and derived profits from that enterprise.
Comparing Swor’s conduct to that “of the other participants
in the” DTF scheme, United States v. Rojas-Millan, 234 F.3d
464, 473 (9th Cir. 2000), we conclude that the district court
“did not clearly err in finding that [Swor] failed to establish
that he played a minor role in the offense,” and therefore was
not eligible for a two-level reduction in the base offense level,
UNITED STATES V. SWOR 9
see United States v. Rodriguez-Castro, 641 F.3d 1189,
1192–93 (9th Cir. 2011); U.S.S.G. § 3B1.2(b) (2011).
SENTENCE AFFIRMED IN PART, VACATED IN
PART, AND REMANDED.