U.S. v. Antonakopoulos

• Decision Date: 22 February 2005
• Docket Number: No. 03-1384.,03-1384.
• Parties: UNITED STATES of America, Appellee, v. Stelios ANTONAKOPOULOS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

399 F.3d 68

UNITED STATES of America, Appellee, v. Stelios ANTONAKOPOULOS, Defendant, Appellant.

No. 03-1384.

United States Court of Appeals, First Circuit.

Heard February 8, 2005.

Decided February 22, 2005.

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Victor A. Wild, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Cynthia A. Young, Assistant United States Attorney, were on brief for appellee.

Terrance J. McCarthy for appellant.

Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

In this case we set forth our standards for review of unpreserved claims of sentencing errors in the aftermath of United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Defendant Stelios Antonakopoulos was convicted by a jury on August 2, 2002 on one count of bank fraud, under 18 U.S.C. §§ 1344 and 2, and one count of theft/embezzlement by a bank officer, under 18 U.S.C. § 656. He defrauded the National Bank of Greece (NBG) in November 1990, and embezzled funds from the Mercantile Bank and Trust Company (MBT) in Boston, in July of 1991. Antonakopoulos had been Branch Manager of the Boston Branch of NBG from March 1983 to July 20, 1988, at which time he became President and a member of the Board of Directors of MBT. He was sentenced to 30 months' imprisonment, largely based on the calculation of loss amount under the Sentencing Guidelines. He was also ordered to pay $350,000 in restitution.

Antonakopoulos has appealed his sentence, arguing that the district court erred on both points — the amount of loss was lower and so his sentence should be shorter and the restitution was excessive. On appeal he also argues for the first time that a jury, not a judge, should have calculated the loss amount. From this he argues he is entitled to a remand for resentencing under Booker.

The government now concedes that a portion of the restitution amount ordered was in error under the statutory scheme in place at the time of the offense. It requests that the restitution amount be reduced from $350,000 to $100,000. We order the reduction in the restitution amount accordingly. We reject all of Antonakopoulos's other claims, including his Booker claim as it is presented, but leave one door open under Booker.

I.

The district court's calculation of loss attributable to the defendant and the amount of restitution is described herein. The details of how the frauds were perpetrated are not described, other than to say defendant kept helping himself to money to which he was not entitled in order to buy stocks on the Athens Stock Exchange (ASE) and then, as the stock prices fell, to pay off previous loans obtained by fraud. The defendant thought that Athens would be named to host the 1996 Olympic Games, and that as a result, the stocks would soar in value. He had hoped to get himself half a million dollars for his retirement fund. When Athens was not named as host and the stock prices fell, his fraud became a sort of Ponzi scheme covering up his victimizing of banks and bank customers.

The scheme, in count one, was executed in July 1990 when Antonakopoulos caused the NBG wrongly to advance a loan of $50,000 in the name of Michael Mavris, a relative of Antonakopoulos who lived in California. Antonakopoulos actually deposited the loan proceeds into an account that he had opened in the name of his brother Nikolaos, and not Michael Mavris. These funds were used to purchase stocks on the ASE. Neither Nikolaos nor Marvis was aware of these machinations.

From November 7, 1990 to November 9, 1990, the defendant caused NBG to wrongly advance $190,000 in the name of his brother, Nikolaos (count two). Antonakopoulos deposited the funds in the account he opened in his brother's name. The funds were used in part to pay off the previous loan then in default. On November 29, 1990, Antonakopoulos created a loan for $170,000 from MBT to the name of Nondas Lagonakis, using Lagonakis's name without his permission or knowledge. The proceeds from this loan were used to pay off an earlier loan the defendant had obtained by fraud and to continue to buy stocks on the ASE. Although the $170,000 loan was not charged in the indictment, evidence of it was admitted by the district court at trial under Fed.R.Evid. 404(b).

In July 1991, in an effort to cover up his previous fraud by paying off those loans, Antonakopoulos embezzled $100,000 from the account of an MBT customer, Maurice Frances, without Frances's knowledge or permission (count three). Antonakopoulos was able to hide this transaction from Frances because he arranged for Frances's monthly statements to be held at MBT, and not sent directly to Frances in Greece.

After eight days of trial, the jury convicted the defendant on counts two and three and deadlocked on count one.

The Pre Sentence Report

Applying the November 1, 1990 Sentencing Guidelines Manual, the Pre-Sentence Report (PSR) calculated Antonakopoulos's offense level alternatively under the embezzlement and theft guideline, U.S.S.G. § 2B1.1, which has a base offense level of 4, and under the fraud guideline, U.S.S.G. § 2F1.1, which has a base offense level of 6. Under both, if the loss exceeds a certain amount, the guidelines required an upward adjustment.¹ The PSR concluded that under either guideline the amount of loss was more than $350,000, but less than $500,000. In calculating loss, the PSR found that the convictions on counts two and three meant the defendant was responsible for the loss resulting from the $190,000 Nikolaos Antonakopoulos loan in November 1990, and the embezzlement of $100,000 from the account of Maurice Frances in July 1991. This $290,000 loss figure was coupled with the loss associated with other fraudulent loans made by the defendant; those loans met the relevant conduct definition because they were "part of the same course of conduct and have been proven by a preponderance of the evidence."² U.S.S.G. § 1B1.3(a)(1). The PSR added the outstanding balance of each of those loans and determined that the total loss was $435,600. This calculation of loss enhanced the defendant's sentence (a) by 11 levels under U.S.S.G. § 2B1.1 and (b) by 9 levels under U.S.S.G. § 2F1.1. This produced a total offense level of 15 under either guideline, subject to further enhancements. In fact the PSR may have understated the loss because it considered only the outstanding loan balances. Cf. United States v. Walker, 234 F.3d 780 (1st Cir.2000).

The PSR also recommended enhancing Antonakopoulos's offense level by a total of six additional levels, including two levels for more than minimal planning, under U.S.S.G. § 2F1.1(b)(2) or 2B1.1(b)(5); two levels for obstruction of justice, under U.S.S.G. § 3C1.1; and two levels for role in the offense, under U.S.S.G. § 3B1.3. The PSR concluded that Antonakopoulos's total offense level under either the fraud or embezzlement guideline was 21, his criminal history category was I, and his guideline sentencing range was 37 to 46 months' imprisonment.

Court's Sentencing

The district court calculated the defendant's guideline range under U.S.S.G. § 2B1.1, finding that the defendant's crimes were most analogous to embezzlement. As for calculation of loss, the court considered only what it deemed to be the three transactions fully developed at trial: the $190,000 loan to Nikolaos in November of 1990, the $170,000 loan to Lagonakis in November of 1990,³ and the $100,000 embezzlement from Frances's account. These produced a total loss of $460,000. With the exception of the $170,000 loan to Lagonakis, the district court did not consider the other "relevant conduct" in its calculation. Had it done so, the loss amount would have been greater and, most likely, the sentence would have been greater.

The district court rejected the defendant's request to reduce the amount of loss based on any repayments made by the defendant on these loans, relying on Walker, 234 F.3d at 783-84. Based on loss between $350,000 and $500,000, the district court enhanced the defendant's base offense level from 4 to 15, as the PSR recommended.

The district court declined the government's request to enhance the defendant's sentence for obstruction of justice. The other two enhancements — for more than minimal planning and for role in the offense — were not directly addressed by the court at the sentencing hearing, but they were clearly included in the court's final determination of the offense level, which was 19.

The court did not grant the defendant's motion for two downward departures: the first based on post-offense rehabilitation and the second based on family circumstances. As to the first, the defendant argued that since his illegal conduct he "has been unblemished and free from incident," and cited his exemplary work record, his constant and committed caring for his son, and his active participation in his church. The district court replied, "the first one [based on post-offense rehabilitation] I don't think is a difficult one. Presentence rehabilitation wouldn't even be an issue in this case had it not taken so long to bring this case to trial from the time of the original offense." The court's conclusion on this point was made irrespective of the fact that this is a rare ground of departure under the guidelines.⁴

Although not presented to us as part of the defendant's Booker argument, our own review of the record shows that the defendant also asked for a downward departure based on family circumstances under U.S.S.G. § 5K2.0 — he argued that he was an "irreplaceable" care taker for his adult son who suffered serious and permanent brain injuries as the result of a 1993 automobile accident. The court considered and rejected the request, stating:

What is difficult about this case is obviously the situation with the defendant's son, which anyone would have a compassionate reaction to. And I don't...