222 F.3d 47 (2nd Cir. 2000), 99-1500, United States v Boyd

Docket Nº:Docket No. 99-1500
Citation:222 F.3d 47
Party Name:UNITED STATES OF AMERICA Appellee, v. BRENT BOYD, AGNES CARTMELL, aka Bea Cartmell, MARK BOYD, aka Joe Prescott, ALBERT MCAMMOND, aka Albert Adams, DAVID BECKLER, aka David Edwards, GEORGE MAZIOTIS, aka Martin Brook, ROBERT ROSS, aka Robert Stevens, HERVE SOURATI, aka Brian Sinclair, Defendants, CLAIRE PECK, aka Cathy Jackson, Defendant-Appellant.
Case Date:August 09, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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222 F.3d 47 (2nd Cir. 2000)

UNITED STATES OF AMERICA Appellee,

v.

BRENT BOYD, AGNES CARTMELL, aka Bea Cartmell, MARK BOYD, aka Joe Prescott, ALBERT MCAMMOND, aka Albert Adams, DAVID BECKLER, aka David Edwards, GEORGE MAZIOTIS, aka Martin Brook, ROBERT ROSS, aka Robert Stevens, HERVE SOURATI, aka Brian Sinclair, Defendants,

CLAIRE PECK, aka Cathy Jackson, Defendant-Appellant.

Docket No. 99-1500

United States Court of Appeals, Second Circuit

August 9, 2000

Argued: March 21, 2000

Appeal from judgment of conviction, after jury trial, in the United States District Court for the District of Vermont (Sessions, J.).

Affirmed.

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GREGORY L. WAPLES, Assistant United States Attorney (Charles R. Tetzlaff, United States Attorney for the District of Vermont on the brief), for Appellee.

MARYANNE E. KAMPMANN, Stetler, Allen & Kampmann, Burlington, VT, for Defendant-Appellant.

Before: FEINBERG, JACOBS, HALL,[*] Circuit Judges.

PER CURIAM:

Defendant-appellant Claire Peck was tried by a jury in the United States District Court for the District of Vermont (Sessions, J.) on charges arising out of her employment as a salesperson for the Canadian Gemstone Association, which marketed gemstones by telephone. She was convicted on five counts of mail fraud in violation of 18 U.S.C. § 1341, and one count of wire fraud in violation of 18 U.S.C. § 1343, and she was acquitted on one count of conspiracy, 18 U.S.C. § 371. Peck is currently serving concurrent 30-month terms of imprisonment, to be followed by three years of supervised release. The district court also ordered her to pay (jointly and severally with all co-defendants) restitution of more than $4,000,000.

On appeal, Ms. Peck raises numerous challenges to her conviction and sentence, most of which are rejected in an unpublished summary order also filed today. See United States v. Boyd, et al, No. 99-1500 (2d Cir. 2000). This opinion disposes of Peck's claims that the district court committed plain error: (1) by imposing restitution for damages suffered by victims of counts as to which she was acquitted; and (2) by calculating restitution on one basis (the harm done by the conspiracy as a whole) while calculating prison sentence on another (the damage suffered by Peck's particular customers).

We hold (1) that Peck's conviction implicates her as a co-conspirator, which under the applicable restitution statutes requires an order of restitution up to the full amount of the loss caused by the conspiracy as a whole; and (2) that because the sentence of imprisonment was reasonable under the Sentencing Guidelines and the restitution amount is reasonable under the restitution statutes, the purported inconsistency in calculating these provisions of the sentence was not plain error.

BACKGROUND

We summarize here only the facts that bear upon the issues decided in this opinion. Because Peck appeals after a jury

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trial, "our statement of the facts views the evidence in the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor." United States v. Salameh, 152 F.3d 88, 107 n.1 (2d Cir. 1998) (per curiam).

Peck was employed as a salesperson for the Canadian Gemstone Association ("CGA"), a Canadian firm that sold gemstones over the telephone to Americans. CGA marketed the stones as investment-grade gems whose supply was controlled by a cartel in Colombia and whose value was therefore projected to increase substantially. The evidence at trial showed that Peck and the other employees at CGA made false statements and representations to induce customers to purchase and invest in gemstones at vastly inflated prices.

Between 1993 and 1996, hundreds of Americans paid more than $5 million for stones marketed by CGA.

In June 1997, a federal grand jury returned a 38-count indictment charging Peck and eight others with conspiracy, mail fraud and wire fraud. All defendants were charged in each count. Peck voluntarily surrendered to U.S. authorities in September 1997, pled not guilty on all charges, and went to trial in March 1998.

At the close of evidence, the district court charged the jury on one count of conspiracy, fifteen counts of mail fraud and one count of wire fraud. Although the evidence showed Peck to have personally sold gemstones to victims identified in only four of the mail fraud counts, the government urged the jury to apply a theory of co-conspirator liability and convict Peck on substantive counts relating to victims of the conspiracy with whom she had no personal dealings.

The jury convicted Peck on five counts of mail fraud and on the count of wire fraud. The jury acquitted Peck on the conspiracy count and on ten counts of mail fraud. The counts of conviction included the four mail fraud counts for which Peck personally sold gemstones, plus two counts--one mail fraud and one wire fraud--as to which Peck had no direct dealings with the identified victims. On these latter two counts, the jury necessarily convicted Peck on the theory of co-conspirator liability, under Pinkerton v. United States, 328 U.S. 640 (1946), as argued by the government at trial.

DISCUSSION

A. Restitution

Peck raised no objection, either in her sentencing memorandum or during the sentencing hearing, to paying full restitution. Our review is therefore limited to plain error. See Fed. R. Crim P. 52(b); United States v. Helmsley, 941 F.2d 71, 98 (2d Cir. 1991) ("[I]f a defendant fails to object to certain information in the presentence report, she is barred from contesting the sentencing court's reliance on that information, unless such reliance was plain error."). Relief under the plain error standard requires a "'clear'" or "'obvious'" error that affects substantial rights. See Johnson v. United States, 520 U.S. 461, 467 (1997) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). There is no such error on this record.

1. Restitution on Acquitted Counts

The restitution order in this case is governed by overlapping provisions of (i) the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A, and (ii) 18 U.S.C. § 2327, which provides for mandatory restitution in cases of telemarketing fraud....

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