Friday, October 02, 2009

Another Relevant Conduct Victory; Counterfeiter Not Responsible for All Recovered Bills Made from Same Image He Used

United States v. Livingston, No. 08-10655 (5th Cir. Sept. 9, 2009) (per curaim) (unpublished) (Benavides, Dennis, Elrod)

A helpful reader alerted me to this nice unpublished relevant conduct win, which actually came out a few weeks before Rhine. (Incidentally, please let me know of any unpublished opinions worth highlighting here, as those usually fly underneath my radar.) And as you will see, the groundwork for this win was laid in the district court, once again demonstrating the importance of preserving error below.

The facts in brief: Livingston was involved of a matrix of people counterfeiting U.S. currency in the Dallas-Fort Worth metroplex. (You truly cannot tell the players without a program in this one.) It all started with a couple of folks from D.C., who provided compact discs with images of genuine currency. The actual counterfeiting was done by bleaching genuine $5 bills and printing the images of $100 bills on the blank currency paper. Livingston got a disc with the currency images from someone else, used it to make more discs, and provided the discs and computers to others. All the while, various people were all making fake $100's and passing them throughout the Metroplex.

Livingston was eventually charged, and ultimately pleaded guilty to one count of possessing counterfeit obligations (18 U.S.C. § 472), and one count of conspiring to manufacture counterfeit obligations (18 U.S.C. §§ 371, 471). When it came to calculating the loss amount, the PSR "attribut[ed] the entire amount of counterfeit obligations recovered in the Dallas-Fort Worth area that was linked to the same images Livingston used to make the counterfeit obligations." Importantly, "[i]n his written objections to the PSR and also verbally at the sentencing hearing, Livingston objected to the court’s use of the entire amount of the loss because the evidence showed there were persons other than his co-conspirators manufacturing these counterfeit bills." The district court nevertheless adopted the PSR's recommendation.

"Error," Livingston claimed. But these types of challenges are tough, because
[a] district court’s calculation of amount of loss is a factual finding that we review for clear error. In order to satisfy this clear error test all that is necessary is that the finding be plausible in light of the record as a whole. The presentence report is considered reliable evidence for sentencing purposes. If a defendant fails to submit evidence rebutting the PSR, the sentencing court is free to adopt its findings without additional inquiry or explanation.
(cites, brackets, and quotation marks elided).

Fortunately, Livingston did a crackerjack job cross-examining the case agent at sentencing. The agent testified that he arrived at the loss amount by adding together "the total amount of counterfeit currency marked with the serial numbers linked to members of the conspiracy that were passed in the Dallas-Fort Worth area." On cross-examination, the agent conceded that several different people possessed the digital images of the genuine currency; that the conspiracy was still going on; that there were other unidentified people would were involved in the manufacturing; and, "subsequent to Livingston’s arrest, banks in the Dallas-Fort Worth area continued to report instances of counterfeit currency with the same serial numbers." Moreover, the evidence showed that the D.C. folks were the ones that introduced the serial numbers into the DFW area, not Livingston. Also, someone else directly connected to the D.C. folks sold the digital images to others who were not associated with Livingston.

Hence the court's holding:
[T]he district court did not find, and the PSR does not demonstrate, that Livingston agreed to manufacture counterfeit currency with individuals other than his charged co-conspirators. The district court also failed to determine the scope of the criminal activity that Livingston agreed to jointly undertake with individuals other than his co-conspirators. We have held that such findings are “absolute prerequisites” to holding a defendant accountable for a third person’s misconduct. “Although the district court on remand is not bound by the guidelines, it must consider them, and in doing so, it is required to calculate the proper guidelines range.” We therefore VACATE Livingston’s sentence and REMAND the case for resentencing.
Just goes to show you that appeals are often won in the district court.

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