United States v. Natour, 11–2577.

• Citation: 700 F.3d 962
• Decision Date: 09 November 2012
• Docket Number: No. 11–2577.,11–2577.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Sami NATOUR, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

700 F.3d 962

UNITED STATES of America, Plaintiff–Appellee,

v.Sami NATOUR, Defendant–Appellant.

No. 11–2577.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 16, 2012.

Decided Nov. 9, 2012.

Nicole Kim (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Michelle L. Jacobs, Attorney, Michael Best & Friedrich LLP, Milwaukee, WI, Carrie Culton Ruzicka (argued), Attorney, Michael Best & Friedrich LLP, Chicago, IL, for Defendant–Appellant.

Before POSNER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Sami Natour was convicted, following a jury trial, of four counts of interstate transportation of stolen property in violation of 18 U.S.C. § 2314. At sentencing, the district court attributed to him a loss amount of approximately $292,000 and determined that he was “in the business of receiving and selling stolen property,” U.S.S.G. § 2B1.1(b)(4); these conclusions resulted in a 14–level increase to Mr. Natour's base offense level under the Guidelines. SeeU.S.S.G. § 2B1.1(b)(1)(G), (b)(4). The district court sentenced Mr. Natour to 28 months' imprisonment on all counts, to run concurrently, followed by three years of supervised release, and ordered restitution in the amount of $104,742.16. Mr. Natour appeals, challenging both his conviction and sentence.

We perceive no violation of the Grand Jury Clause in Mr. Natour's conviction. The terms used in 18 U.S.C. § 2314 are not of a wholly independent character, and the offense conduct proved at trial and stated in the jury instructions are within the charges approved by the grand jury. Further, we find no reversible error in the district court's sentencing decisions. The court properly applied § 2B1.1(b)(4) of the United States Sentencing Guidelines to Mr. Natour as a person in the business of receiving and selling stolen property, and the court used both an acceptable method and evidence-based mathematical figures in arriving at a loss calculation for purposes of § 2B1.1(b)(1). Accordingly, we affirm the judgment of the district court.

IBACKGROUND

A. Facts

On February 7, 2007, Secret Service Agent Joel Heffernan received a tip from FedEx about suspicious activity on Mr. Natour's account, namely, four packages sent from “Sam–Tek” ¹ to “Sam, SNS” in New York, for cash on delivery in the amount of $63,970. Upon visiting the FedEx facility the following day, agents discovered that the boxes contained 290 new Nextel cellular phones in individual boxes, but not shrink-wrapped. There were no invoices or packing slips. Law enforcement catalogued the contents, and the packages were forwarded on to the delivery address.

The same day, FedEx called the Secret Service again, this time to alert them to two additional packages from Mr. Natour to the same recipient, for cash on delivery in the amount of $20,000. In these two boxes, agents found 100 new Nextel phones packed in the same manner with no packing slips or invoices. Again, the contents were catalogued and forwarded to the recipient.

On February 8 and 9, a person identifying himself as Mr. Natour called FedEx to complain about delayed delivery of his February 7 packages, which he claimed contained “electronic equipment such as mother-boards.” ²

On February 12, 2007, agents conducted surveillance of Mr. Natour's home. They observed a man later identified as Andre Williams delivering two cardboard boxes. Later the same day, the agents examined another shipment from the defendant at the FedEx facility. These boxes contained 119 Nextel phones in the same condition as prior shipments, this time addressed to “Frances, SND” in Los Angeles, for cash on delivery of $23,000.

Two days later, on February 14, agents conducted surveillance of Mr. Natour's cell phone business, Quickcom, located in Chicago Ridge. They observed a FedEx driver pick up two packages for shipment. Upon arriving at the FedEx facility, the agents opened the packages and found 55 Nextel phones packed in the same way as prior shipments. The agents searched the trash at Quickcom and recovered five invoices for cell phones ordered by individuals and businesses other than the defendant or any of his business names. The serial numbers on these invoices matched the numbers for phones contained in the February 7 and 8 shipments by Mr. Natour.

On February 27, 2007, agents obtained an arrest warrant for Mr. Natour and search warrants for his home and business. In the search of his home, agents discovered $34,000 in a FedEx box in his crawlspace, as well as various relevant documents including FedEx airbills for the shipments in question. At his business, the agents verified that his inventory was legitimate. The agents also executed a search warrant at SNS in New York, a recipient of several of the suspicious shipments. They discovered an additional 151 new Nextel phones shipped by Mr. Natour to SNS for $30,030 cash on delivery, in the same condition as prior shipments and without packing slips.

Upon his arrest, Mr. Natour cooperated with the agents and provided a statement. In it, he described becoming acquainted with Williams, who Mr. Natour claims obtained cell phones by incorporating a business and purchasing phones in the business's name, only to default on the payment. Williams would sell Mr. Natour the phones for $200 apiece, and Mr. Natour would resell for a profit of $25–$35 per phone. Mr. Natour stated that he had sold approximately 1500 phones to SNS and had dealt with it “for the past five months.” ³ He identified other individuals with whom he was involved, and others that were involved with Williams, including one whom he described as “[t]he main business owner dealing with illegal phones.” ⁴ Immediately after these admissions, Mr. Natour's statement concluded: “I think that I made about $60,000 in 2004, $75,000 in 2005 and $90,000 in 2006. I know I didn't claim this money on my taxes. I know what I did, I know what I was doing was illegal, but I wasn't sending any money overseas.” ⁵

B. District Court Proceedings

The Government indicted Mr. Natour on five counts of transporting telephones “knowing the same to have been stolen and converted,” in violation of 18 U.S.C. § 2314. Each count corresponded to a shipment date: February 7, 8, 12, 14 and 27 of 2007.

At trial, the Government relied heavily on the testimony of Michael Stock, the manager of Sprint's ⁶ corporate security group. Stock had reviewed all of the inventory data acquired by the Secret Service agents in the course of their investigation. Stock stated that, of the 708 total phones involved in the five shipments, roughly 550 were identified by their serial numbers as Sprint/Nextel phones. Of the Sprint/Nextel phones, 379 were associated with an account “adjustment,” which Stock described as follows: When a phone was ordered from Sprint, a line-item charge would be placed on a customer's phone bill. If a customer called Sprint to indicate that a phone purchase never had been authorized, nor had any phone actually been ordered or received, Sprint would “adjust” the bill to correct the error. When the charge was unauthorized, the bill would be adjusted to zero, meaning the entire cost of the phone would be written-off as a loss by Sprint. When this process was handled by one of Sprint's fraud investigators, the loss would be coded in Sprint's internal accounting system with the notation “F,” for fraud. If the report was handled by a customer service agent rather than a fraud investigator, it could not be given the “F” code, although it is possible that the customer's complaint could have been identical.

Stock also explained to the jury numerous tables identifying individual phones and the account adjustments with which they were associated. He acknowledged that, although the majority were associated with a fraud code, other adjustments and other codes also were present. He noted that, if a customer did not contact Sprint to complain that a phone was charged improperly to his account, no fraud investigation would be initiated and no adjustment made. Stock's testimony suggested that similar account fraud could go undetected if a customer did not notice and report an irregularity on his bill.

Stock tallied all of the adjustments to Sprint accounts associated with the 379 phones and concluded that, based on those phones alone, the “minimum loss to Sprint” was $104,742.16.⁷ Stock identified this number as a “minimum loss” because, although it represented the total value of adjustments to customer accounts on the 379 phones for which adjustments were sought, whether coded “F” or otherwise, it did not reflect the full value of the phones, which are offered at a below-cost discount to customers, primarily as inducements to enter or lengthen telephone service contracts.

Stock also testified that neither Mr. Natour nor any of his business names had accounts with Sprint, although one need not be an authorized dealer or account holder to sell Sprint phones. Finally, Stock reviewed the packing slips recovered from the Quickcom trash search and stated that all five were orders by legitimate Sprint customers. All of the packing slips had shipping addresses that did not match the customer's billing addresses, which, he indicated, was evidence of fraud. He also stated that four of the five slips contained orders that were associated with account adjustments. The fifth slip contained an order on the business account of Frito–Lay. Frito–Lay never contacted Sprint to report unauthorized charges or request an adjustment.

More than 150 cell phones catalogued by the agents could not be associated with Sprint. Among them were all 55 cell phones related to Count 4, concerning the February 14 shipment. According to the agents' records, those phones had a differently formatted serial number and could not be identified at all. Accordingly, the Government dismissed Count 4.

At the close of the Government's evidence, Mr. Natour presented no evidence and...