U.S. v. Aslan

• Citation: 644 F.3d 526
• Decision Date: 12 May 2011
• Docket Number: Nos. 08–1486,08–4136.,08–1678,08–3789,s. 08–1486
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Igor ASLAN, Mihai Panaitescu, Stefan Dumitru and Adrian Fechete, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

644 F.3d 526

UNITED STATES of America, Plaintiff–Appellee,

v.Igor ASLAN, Mihai Panaitescu, Stefan Dumitru and Adrian Fechete, Defendants–Appellants.

Nos. 08–1486

08–1678

08–3789

08–4136.

United States Court of Appeals, Seventh Circuit.

Argued May 25, 2010.Decided May 12, 2011.

Manish S. Shah, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee in Docket No. 08–1486.Thomas A. Gibbons, Attorney, Kreiter & Gibbons & Associates, Chicago, IL, Igor V. Aslan, Federal Correctional Institution, Fort Dix, NJ, for Defendant–Appellant in Docket No. 18–1486.Manish S. Shah, Attorney, Stephanie Michelle Zimdahl (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee in Docket No. 08–1678, 08–3789, and 08–4136.Beau B. Brindley (argued), Attorney, Shapiro & Brindley, Chicago, IL, for Defendant–Appellant in Docket No. 08–1678.Joseph R. Lopez (argued), Attorney, Chicago, IL, for Defendant–Appellant in Docket No. 08–3789.Sylvia N. Winston (argued), Attorney, Kirkland & Ellis LLP, Chicago, IL, for Defendant–Appellant in Docket No. 08–4136.Before FLAUM, ROVNER, and WOOD, Circuit Judges.

ROVNER, Circuit Judge.

Confidence games are as old as a pig in a poke, but the internet has changed the scale of the con to allow schemers to reach effortlessly across oceans into the pockets of their trusting marks.¹ The defendants here ran a con for two and a half years using the most efficient “poke” that technology has to offer: eBay. The confidence men (and women) in this scheme, many of them based in Romania, posed as sellers of goods on eBay and other internet auction sites. They accepted payment via Western Union, collected by co-schemers at various locations in the Chicago area. The co-schemers then kept a percentage of the money for themselves and sent the balance to Romania. In each instance, the poke was empty: no goods were delivered to the buyers. This had the beneficial effect for the defendants of keeping costs down and profits high. Most of the defendants pled guilty; one was convicted after a trial. The one who went to trial appeals both his conviction and his sentence; the others appeal their sentences.²

I.

The scheme was remarkably simple and uncommonly successful: offer items for sale through internet auction sites, collect payment, and then fail to deliver the goods. The only complication was collecting the money without being caught. Between November 2003 and August 2006, the defendants and their associates managed to fleece more than two thousand victims out of more than six million dollars. The Romanian originators of this scam (the government calls them the “Foreign Co-schemers” and we will, too) posed as sellers on eBay and other auction sites. They contacted buyers who had previously bid on items but failed to complete the transactions because they did not offer the highest bids. The Foreign Co-schemers sent email to the disappointed bidders extending “Second Chance Offers” to buy the items on which they had recently bid. A typical email displayed logos that made it appear as if eBay itself was extending the offer on behalf of the seller. Each email contained extensive information regarding protections eBay was providing against fraud. The Foreign Co-schemers were careful to mimic the language of legitimate eBay correspondence. For example, they referenced the “Security & Resolution Center,” which is the actual name of a group at eBay that is designed to assist eBay users in resolving transactional disputes and reporting fraudulent activities. Because the Foreign Co-schemers believed that buyers would be reluctant to deal with foreign sellers and would be wary of wiring money to foreign countries, they employed collection agents (hereafter “U.S. Co-schemers”) in the United States, including in the Chicago area. Once the victim agreed to make a purchase, the Foreign Co-schemers would instruct the victim to send payment by wire transfer to one of the U.S. Co-schemers, typically through Western Union. To lessen the risk of being detected by authorities, the U.S. Co-schemers assumed false identities to collect the wired payments at various currency exchanges. The U.S. Co-schemers kept in continuous contact with their Romanian counterparts in order to communicate the constantly changing names the sellers should use when luring victims, and in order to obtain the money transfer control numbers issued by Western Union to the victims making the purchases. Once the U.S. Co-schemers received money transfer control numbers, they would use matching, fake identification documents to claim the funds from Western Union agents at various currency exchanges. After deducting their percentage of the proceeds, they would then forward the remainder to the Foreign Co-schemers. By returning a percentage to their Romanian counterparts, the U.S. Co-schemers would ensure that repeat business would be sent their way in future transactions. Each of the defendants here played a different role in the scheme for varying periods of time. We will address the appeals of each defendant separately.

A.

Igor Aslan was charged with three counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. He pled guilty to one count of wire fraud pursuant to a plea agreement. In exchange for his plea, the government agreed to dismiss the two remaining counts, to recommend that Aslan be sentenced within the applicable guidelines range, and to recommend that the court adjust Aslan's sentence to give him credit for time served in state custody for a related conviction. Aslan served ten months of a thirty-month sentence in state custody for possession of a fraudulent identification document, and subsequently spent several months in the custody of immigration officials before he was charged with the instant offense. The plea agreement did not bind the court to any particular sentence. The parties agreed that the applicable guidelines range was fifty-one to sixty-three months.

Although the court initially indicated an inclination to follow the government's recommendations, Aslan gave a lengthy elocution in which he said a number of unfortunate things that caused the trial judge to rethink his intention to credit Aslan for time served in state custody. Among other things, Aslan characterized a 1992 state court conviction as a “set-up.” He declared, “I never stole, I never steal and I will never steal.” After conceding that he was guilty of the crime charged here, he said, “But my responsibility in committing this crime, it's very limited.” R. 455, Tr. at 13–14. He compared himself favorably to his co-schemers by noting that he “was never involved in false advertising,” never recruited others into the scheme, and did not know that another group of collection agents was working in the Chicago area as part of the same scheme. R. 455, Tr. at 14–15. He also insisted that others in the scheme filled out the paperwork to receive the money and that he simply signed the forms and took the money from the currency exchanges. He contended that he did not know “where the money came from,” but that he simply collected it, kept ten percent and immediately handed the remainder over to others in the scheme. From his ten percent, he complained, he was forced to pay the cost of the fake id cards, leaving a “very small amount” for himself. R. 455, Tr. at 16–17. He offered the court an example of a collection for $2900, from which he was paid $290, which was further reduced to $190 after he paid for the fake id. “This is the truth,” Aslan insisted, apparently unaware that the court might have more sympathy for the victim who lost the entire $2900, not to mention the seventy-four other victims whose money Aslan collected at various currency exchanges. He told the court that other participants were armed and were far more involved than he, and yet some were never arrested. He faulted the FBI for a “lack of professionalism” that led to fewer arrests than would have been possible if the Bureau had given more attention to certain information. He repeated his claim that he had “never stolen anything,” and asked “please to be considered for a small punishment.” R. 455, Tr. at 20. He conceded that “the victims were defrauded,” but complained that “my amount, it's extremely small. If one would calculate after what my earnings were, it's nothing federal here.” R. 455, Tr. at 20.

Needless to say, the district court was not impressed by Aslan's attempt to divest himself of responsibility for the tremendous harm he caused the victims of his crimes:

I listened very carefully to the statement you made to me. There was no expression of contrition, no expression of regret, no acknowledgment of the harm that you have caused or the number of people your conduct has caused harm to. You never really admitted that you were wrong. Instead, you asked me to focus on the relatively small amount of money that you made out of this.

R. 455, Tr. at 23. The court then considered the Section 3553(a) factors and determined that a sentence at the high end of the guidelines, sixty-three months, was appropriate for Aslan. The court declined to give Aslan credit for time served in state custody and instead stated, “I intend that this sentence be served as I pronounce it.” R. 455, Tr. at 23. The court also ordered restitution in the amount of $187,982.48, and a three-year period of supervised release.

Aslan's lawyer moved to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), contending that Aslan had no non-frivolous issue to raise on appeal. Aslan responded to our invitation to reply to his attorney's motion. See Circuit Rule 51(b). We confine our review of the record to the potential issues raised in the attorney's facially-adequate brief and Aslan's Rule 51(b) response. United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir.2002); United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997).

Aslan's attorney...