U.S. v. Acosta

• Citation: 303 F.3d 78
• Decision Date: 30 August 2002
• Docket Number: No. 01-2224.,01-2224.
• Parties: UNITED STATES of America, Appellee, v. Cesar ACOSTA, a/k/a Nelson Barrera, a/k/a Pedro Lozada, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

303 F.3d 78

UNITED STATES of America, Appellee, v. Cesar ACOSTA, a/k/a Nelson Barrera, a/k/a Pedro Lozada, Defendant, Appellant.

No. 01-2224.

United States Court of Appeals, First Circuit.

Heard March 7, 2002.

Decided August 30, 2002.

Jonathan R. Saxe, Assistant Federal Public Defender, with whom Owen S. Walker, Federal Public Defender, was on brief for appellant.

Jean B. Weld, Assistant U.S. Attorney, with whom Thomas P. Colantuono, U.S. Attorney, was on brief for appellee.

Before LYNCH Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

Defendant-appellant Cesar Acosta pled guilty to a one-count indictment charging him with use and attempted use of one or more unauthorized access devices in violation of 18 U.S.C. §§ 1029(a)(2) and (b)(1). In determining the offense level, the district court calculated total loss in excess of $20,000, sentencing Acosta to ten months imprisonment and three years of supervised release. In calculating restitution, the court considered suppressed evidence that it had excluded from the loss calculation. Acosta appeals both the loss amount, with its resulting offense level, and restitution award. We AFFIRM.

I. BACKGROUND

A. Facts

On October 2, 2000, Acosta used an American Express card in the name of Nelson Barrera to purchase three $250 gift cards from a J.C. Penney store in Nashua, New Hampshire. Store security officer Mark Kidd witnessed the purchase, followed Acosta into the parking lot, and observed him enter the Sears store. Acosta's purchase aroused Kidd's suspicions because the store had recently experienced losses arising from multiple gift card purchases through counterfeit credit cards. At the time he observed Acosta, Kidd was unaware that the defendant was using a fraudulent card. Sears security videotaped Acosta as his card was denied when he attempted to purchase similar gift certificates. Kidd then observed Acosta enter a car, which, it developed, was registered to Acosta's girlfriend, Delva Castanos. Security Officer Kidd contacted American Express and learned that Nelson Barrera was not a valid American Express account holder.

On October 14, 2000, Acosta purchased two more $250 gift certificates from a Target store in Nashua, New Hampshire, using a MasterCard also in the name of Nelson Barrera. Eleven days later, investigators from the Nashua Police Department and Secret Service went to the apartment of Acosta's girlfriend Delva Castanos. Castanos identified the man in the Sears videotape as Acosta and consented to a search of her apartment and vehicle.

About the same time, Officer Karen Becotte of the Nashua Police Department stopped Acosta as he was driving Castanos's car in the parking garage of the building in which she had an apartment.¹ Acosta showed her a New Hampshire driver's license in the name of Pedro Lozada. Becotte falsely informed Acosta that his vehicle was suspected of involvement in a hit-and-run accident, and Acosta accompanied her to the police station in Castanos's car.

In an interview at the police station, Acosta admitted to the use of a number of aliases and stolen credit cards. He said he had obtained the cards from an individual he knew as "Fat John." He also indicated that Castanos's apartment contained evidence including items purchased with these cards, receipts, and additional fraudulent credit cards. Acosta accompanied investigators to the apartment, showed them the evidence, and provided them with seventeen credit cards in several different names.

Prior to Acosta's interrogation, Officer Kidd also learned of fraudulent credit card charges at a J.C. Penney store in Concord New Hampshire, on February 21 and 22, 2000. These charges, on a card issued to Rafael Vila, consisted of four $250 gift card purchases and a $124.98 merchandise purchase, totaling $1,124.98. The government linked Acosta to these transactions through his use of an American Express card to fraudulently purchase gift cards at a J.C. Penney in Salem, New Hampshire, on January 10, 2000. Later, an individual using the name Joseph Trimpin redeemed the J.C. Penney gift cards purchased by both Vila and Acosta at a store in Miami, Florida.² Through Trimpin's actions, the government linked Acosta to the Vila transactions.

B. Procedural History

On November 9, 2000, Acosta was indicted on one count of possession of, with intent to defraud, fifteen or more counterfeit or unauthorized access devices (credit cards), in violation of 18 U.S.C. § 1029(a)(3). Acosta filed a motion to suppress, arguing that he had been illegally arrested, questioned absent Miranda warnings, and questioned after he had requested an attorney. The district court granted the motion, suppressing all of Acosta's statements and all evidence derived therefrom, including a number of credit cards and receipts found at Castanos's apartment. After this, the district court granted the government's motion to dismiss the indictment. On March 15, 2001, the government reindicted Acosta on one count of fraudulently using and attempting to "use one or more unauthorized access devices ... including, but not limited to, American Express Card # 371388014444020, to fraudulently obtain property and other items of [sic] with an aggregate value of more than one thousand dollars" between January 1, 2000 and October 25, 2000, in violation of 18 U.S.C. §§ 1029(a)(2) and (b)(1). Acosta filed another motion to suppress, which the district court dismissed as moot based on the government's representations that it would not rely on any evidence covered by the earlier suppression order to prove the charge in the second indictment. The district court also dismissed as moot Acosta's motion to dismiss or, in the alternative, for a bill of particulars because "the government has represented that the indictment's reference to `other access devices' refers to those credit cards identified in its Objection to Defendant's Motion to Dismiss ... and that its evidence will be limited to the access devices identified in the indictment and in its objection." The government represented in this motion that "[n]one of the information [in the second indictment] is subject to the suppression decision" and that it would not attempt to use the suppressed evidence without the court's permission.

Acosta pled guilty to this new indictment and signed a binding plea agreement stipulating that the amount of loss from his charged conduct did not exceed $40,000.

The government also filed a sentencing memorandum with attachments in support of its sentencing positions. This report incorporated the results of a Secret Service inquiry into the use of American Express card number 371388014444020, which found that the card had been legitimately issued to Olgamarina De Tunez of Miami, Florida. The memo report contained a list of seventy-six fraudulent charges on this credit card. Three entries reflected the October 2 transactions that Officer Kidd had witnessed at the J.C. Penney store in Concord, New Hampshire. Other charges included transactions at Henri Bendel, a business in New York City, on September 7, 2000; K-Mart in North Miami, Florida, and Sam Goody in Salem, New Hampshire, all on September 14, 2000; Sears Roebuck in Manchester, New Hampshire, on September 15, 2000; Scoop East in New York City and Lenscrafters and Sears Roebuck in Nashua, New Hampshire, all on September 24, 2000; as well as myriad other transactions at New Hampshire and Massachusetts businesses. The fraudulent charges to this account, an account known to investigators prior to their obtaining the suppressed evidence on October 25, 2000, totaled $17,243.69.

At sentencing, the district court ruled that the suppressed evidence could not be used to calculate offense level because the police had acted "egregious[ly]" in obtaining it. The court attributed the purchases made by Vila to Acosta and included them to calculate total loss. The court included the $1,124.98 in purchases by Vila, $17,243.69 in American Express Card purchases, $1,498.99 from Acosta's fraudulent use of a MasterCard, and $259.96 from Acosta's purchases at Sears to calculate total loss for Acosta's guideline range. The resulting total, $20,127.62, yielded a total offense level of ten with a guideline sentencing range (GSR) of six to twelve months. Applying a criminal history category of I, the court sentenced Acosta to ten months imprisonment and three years of supervised release. It also ordered restitution of $37,756.30, an amount that included the suppressed transactions. Without any defense objection as to accuracy, the court adopted this restitution figure from the government's August 23, 2001, letter to the Probation Office, which referred to affidavits of loss provided by the credit card companies.

II. DISCUSSION

Acosta appeals the district court's calculations of loss, along with its resulting offense level, and restitution. On loss, he contests both the $17,243.69 American Express figure, arguing it should be $750.00, and the $1,124.98 figure, claiming no part of it should be attributed to him. He contends that his sentence should be based on a loss figure of less than $5,000, resulting in an offense level of six, and a GSR of zero to six months. He also contests the restitution amount, arguing that the district court should not have considered the suppressed transactions. We reject both arguments.

A. Loss Calculation

Acosta argues that the district court erred in calculating his offense level by including unsuppressed credit card charges that the government did not prove Acosta personally made. We review the district court's findings of fact for clear error. United States v. Brewster, 1 F.3d 51, 54 (1st Cir.1993). This Court grants great deference to a district court's calculation of the amount of loss for sentencing purposes:

Calculating the amount of loss for purposes of the sentencing guidelines is more an art than a science.... [A] party...