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June 30, 2009

Should SCOTUS or USSC resolve circuit split on who counts as a fraud victim?

The National Law Journal has this new piece noting a circuit split over who counts as a victim for a guideline enhancement in fraud cases.  The article is headlined, "Circuits split on sentencing for financial fraud —  At issue is whether people who are reimbursed for financial losses from criminal schemes should be counted as victims," and here are snippets:

The U.S. Court of Appeals for the 1st Circuit last Friday waded into a growing circuit split over how tough judges can be on defendants accused of financial fraud.  At issue is whether judges should count people who are reimbursed for financial losses from criminal schemes as victims when deciding whether to increase a defendant's sentence.

In a pair of opinions, Judge Kermit V. Lipez, writing for unanimous 1st Circuit panels, upheld 72-month sentences for defendants who were accused of stealing debit card numbers, personal identification numbers, credit card numbers, and ultimately money, from customers of Stop & Shop supermarkets in Rhode Island.  The cases are United States v. Stephanian and United States v. Ter-Esayan.

Federal sentencing guidelines allow for a sentence enhancement for financial crimes like embezzlement and fraud if there are more than 250 victims.  Regarding defendant Mikael Stephanian, Lipez concluded that "the card holders bore the first part of the total losses before the funds were restored" and were unable to access the money the defendants withdrew from their account for a period of time....

That's in line with a 2005 ruling by the 11th Circuit in United States v. Lee, which considered reimbursed persons as victims.  Lipez wrote that the court was rejecting the position of the 6th Circuit in a case, United States v. Yagar, that account holders did not suffer "actual pecuniary harm" because they got their money back.  He noted similar rulings by the 3rd, 5th, 9th and 10 circuits.

Pat Harris of Los Angeles-based Geragos & Geragos, who represented Arman Ter-Esayan in the appeal, said he and his client are disappointed because so many circuits ruled the other way. "There's a real split in the circuits," Harris said.  "I think at some time the Supreme Court is going to have to take a look at this.  When you've got this prominent of an issue, at some point there's going to have to be some clarification."

Especially since the federal sentencing guidelines are supposed to help achieve nationwide consistency in sentencing law and policy, I agree that this circuit split needs to be resolved ASAP.  But, because the split involves a guideline interpretation issue, it is not clear that the Supreme Court must or even should be primarily in charge of providing needed clarification.  As the Supreme Court noted in the (too rarely discussed) Braxton case at the outset of the guideline era, it may make more sense for the US Sentencing Commission to resolve these issues through guideline amendments than for the Supreme Court to deal with the issue via adjudication.

One of my very first articles, Sentencing Commission as Guidelines Supreme Court: Responding to Circuit Conflicts, 7 Federal Sentencing Reporter 142 (1994), talked through this issue of who should respond to these kinds of conflict.  In that piece, I highlighted some of the pros and cons of the USSC rather than SCOTUS being primarily in charge of dealing with these kinds of issues.  And I continue to be unsure whether in general or in this particular fraud setting who should take charge of these kinds of splits.

June 30, 2009 at 11:07 AM | Permalink

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Comments

Either way I would say that folks should qualify as victims so long as they knew about the problem before reimbursement. If the bank caught the fraud and fixed it before that knowledge was had by the customer then I would not grant victim status.

Posted by: Soronel Haetir | Jun 30, 2009 3:09:03 PM

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