U.S. v. Egemonye, 94-1922

• Decision Date: 08 February 1995
• Docket Number: No. 94-1922,94-1922
• Citation: 62 F.3d 425
• Parties: UNITED STATES of America, Appellee, v. London EGEMONYE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 425

62 F.3d 425

UNITED STATES of America, Appellee, v. London EGEMONYE, Defendant, Appellant.

No. 94-1922.

United States Court of Appeals First Circuit.

Heard Feb. 8, 1995.

Decided Aug. 3, 1995.

Joan M. Griffin, by Appointment of the Court, with whom Casner & Edwards, Boston, MA, was on brief, for appellant.

James F. Lang, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief, for U.S.

Before CYR, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

London Egemonye was indicted in 1993 under a multi-count indictment charging him and others with conspiracy and other offenses relating to the possession and use of other people's credit cards. 18 U.S.C. Secs. 1029(a)(2) (trafficking, fraud and use), 1029(a)(3) (possession with intent to defraud), 1029(b)(2) (conspiracy). On June 10, 1994, Egemonye entered guilty pleas to all counts, and he now appeals from his sentence arguing that it is flawed by the government's manipulation of sentencing factors and by an improper computation of loss.

Because there was no trial, we derive the facts primarily from the recitations at the plea hearing, from the presentence report, and from submissions at the sentencing hearing. United States v. Connell, 960 F.2d 191, 192-93 (1st Cir.1992). The case arose out of a sting operation conducted by a joint federal-state task force investigating credit card and other financial fraud in Massachusetts. The critical events took place in January and February 1993.

Robert Leslie, who was cooperating with authorities, introduced Egemonye to an undercover state trooper known to both only as "Kathy." On January 21, 1993, Kathy supplied Egemonye with two BayBank MasterCard credit cards and one BayBank Visa credit card with an aggregate credit limit of $7,450 for all three cards. Egemonye then created false driver's licenses in the credit-card names, each license bearing Leslie's photograph, and drove Leslie to three different banks to obtain cash advances of $6,900.

Egemonye purchased four more credit cards from Kathy on January 29, 1993, and four more on February 2, 1993. The aggregate limits on the cards in the two transactions were $21,000 and $14,000, respectively. In between these transactions, several of the cards were used to obtain advances from banks, and Egemonye and others in the conspiracy engineered deposits of some stolen checks into accounts of individual card holders to boost the depleted credit available for those cards.

Until the fourth transaction, Kathy made the "sales" in exchange for a share of the proceeds, but on February 5 she proposed that she be paid a flat $200 per card. Egemonye said, "I'm not going to buy one card for two hundred.... It has to be like ten." On February 10, Kathy told Egemonye that she expected to receive a number of cards that day, that Egemonye should bring $2,000 for 10 cards, and that she would "front" (finance) any additional cards and accept payment for them later. Egemonye agreed, subject to his examination of the cards.

When Kathy and Egemonye met later that day, Kathy said that she had a bag full of cards and asked Egemonye whether he knew of another buyer if he did not want them all. He said, "I probably can handle them," and proceeded to give Kathy $2,000 down, and a promise of $6,000 more later, for 40 Household Bank Visa and MasterCard credit cards with an aggregate limit of $200,000. Egemonye was arrested immediately thereafter, followed by the indictment and plea already described.

At sentencing, the district court increased the base offense level of 6 by 8 additional levels because the "loss" attributed by the court to Egemonye was over $200,000. U.S.S.G. Secs. 2F1.1(a), (b)(1)(H). The court computed the loss at $242,950, representing the aggregate credit limit of the 51 credit cards purchased from Kathy in the four transactions. The offense level was then adjusted in other respects, not here in dispute, and Egemonye was sentenced within the guideline range to 37 months' imprisonment.

1. On appeal, Egemonye's first claim is directed at the 40 cards supplied to him in the final transaction. Egemonye contends that including these 40 cards in the loss calculation condones "blatant sentencing factor manipulation engaged in by the investigating agents" and is a violation of constitutional due process. He relies on several decisions, including United States v. Connell, 960 F.2d 191, 196 (1st Cir.1992).

We have recently had occasion to discuss Connell and the other decisions in this circuit that have addressed sentencing factor manipulation. United States v. Montoya, 62 F.3d 1 (1st Cir.1995). Summarizing the prior cases, we said that "where government agents have improperly enlarged the scope or scale of the crime," the sentencing court has power to exclude "the tainted transaction" from the guideline computations and for purposes of any mandatory minimum statute. Montoya, 62 F.3d at 3 (quoting in part Connell, 960 F.2d at 195).

However, recognizing the broad latitude allowed to the government in investigating and suppressing crime, we stressed that it was only "extraordinary misconduct" by agents that could give rise to such an exclusion, which would occur in the teeth of a statute or guideline approved by Congress. Montoya, 62 F.3d at 3-4 (quoting in part United States v. Gibbens, 25 F.3d 28, 31 (1st Cir.1994)). While something less than a constitutional violation might suffice, as extraordinary misconduct, Egemonye's reference to due process concepts is certainly in the ballpark.

In Montoya, as in previous cases, we refused to lay down fixed rules to define sentence factor manipulation, but said that the focus is normally upon the conduct of the government rather than the defendant. 62 F.3d at 4. Indeed, Egemonye does not claim that his will was overborne or deny that he was predisposed to the offense. What Egemonye claims is that the fourth transaction had no legitimate law enforcement purpose and was designed solely to boost his federal sentence because government agents were unhappy with lenient treatment that Egemonye earlier received in state court.

There is some basis for the suggestion that task force agents were unhappy with Egemonye's prior record and believed, in the words of one of the agents, "that he [earlier] got off lightly for his criminal activity." That criminal record, according to the agent just quoted, involved a history of credit card fraud by Egemonye that could be traced back to 1990 and involved a number of transactions. On this appeal, the government is prepared to assume arguendo that the background facts, "viewed collectively, could call the government's motives into question to some extent."

Nonetheless, the government says that multiple sales were clearly appropriate in order to identify Egemonye's co-conspirators, which they did. As to the final sale of 40 cards, the government insists that it too "had a valid investigatory purpose" which was "to explore the parameters of the defendant's criminality." Egemonye's counsel replies that this "parameters" explanation has no real substance and could be used to enlarge a defendant's sentence to virtually any height whatever. We think that Egemonye's reply has some force but overstates the matter.

There is, it should be stressed, no indication that Egemonye was coerced or pressured to achieve a new level of crime. True, the fourth sale was much larger than the earlier ones; but agent Kathy did not force the 40 cards on Egemonye. On the contrary, he had insisted on at least 10 cards for the new $200 per card payment ("I'm not going to buy one card for two hundred.... It has to be like ten.") And when offered a bag full of cards--with the request that he recommend another buyer for those he did not want--he responded, "I probably can handle them," and took them all.

Government agents are not limited to replicating a suspect's largest unsolicited crime. In this case, the full contours of the criminal operation--its size, techniques, personnel--were, like an iceberg, largely submerged and the means of exploration were additional and larger transactions. The first three transactions clearly served this purpose and the fourth, even though followed immediately by the arrest, provided air-tight evidence for trial that Egemonye was a significant dealer and not a petty swindler. While the sting could not be endlessly prolonged and enlarged, nothing in the objective facts suggests "misconduct" at all, let alone "extraordinary misconduct."

The question, then, is whether the fourth transaction is tainted by the agents' subjective motives. The pallet in such matters contains not blacks and whites but shades of gray. Motives may be mixed; good and bad motives are often matters of degree; and there can be multiple actors. Whether to consider subjective motive at all presents a problem of policy. Compare Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (refusing to do so in the qualified immunity context). Still, we would be greatly concerned if evidence otherwise available showed that a plainly improper subjective motive--say, racial hostility or personal animus--had enlarged or prolonged the sting.

But this is not such a case. About the most that can be derived from the record, drawing all reasonable inferences in favor of Egemonye, is that the agents thought that Egemonye was an established and unrepentant defrauder who had escaped serious punishment for a series of past, similar frauds. With this in mind, they conducted a sting operation that involved no pressure whatever on Egemonye, lasted for only four transactions, and garnered several other defendants. The first three transactions involved 11 cards; the last one, 40. This is a sizeable jump but hardly extraordinary.

That agents considered Egemonye's past record in selecting him for overtures by the task force is a commonplace of law...