United States v. Aslan
2011 U.S. App. LEXIS 9649
7th Cir.2011Background
- Defendants operated a two-and-a-half-year internet-based consignment scheme using eBay, Western Union, and U.S. agents to transfer funds to Romania without delivering goods.
- Romanian co-schemers posed as sellers; U.S. co-schemers collected money using false identities and forwarded profits to Romania after deducting a share.
- Victims numbered in the thousands with losses exceeding six million dollars; scheme relied on misrepresentation and spoofed eBay communications.
- Aslan pled guilty to one count of wire fraud; Panaitescu pled guilty to one count; Dumitru pled guilty to one count; Fechete went to trial and was convicted on multiple counts.
- District court sentenced Aslan to 63 months (no credit for state custody), Panaitescu’s appeal was waived, Dumitru’s sentence was affirmed, and Fechete’s convictions and sentences were partially altered on appeal.
- On appeal, Fechete’s aggravated identity theft conviction was vacated due to Flores-Figueroa; money laundering conviction affirmed; remand ordered to reevaluate loss calculations and scope of joint activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Credit for time served | Aslan seeks state custody credit. | State custody credit or immigration custody credit should apply. | Credit denied for state and immigration custody; affirmed as within discretion. |
| Waiver of appellate rights | Appeal not barred by waiver; issues preserved. | Waiver precludes appellate review of sentence-related issues. | Appeal waived; Panaitescu’s appeal dismissed under waiver. |
| Foreseeability and scope of joint activity (Dumitru) | Foreseeability supports >$400,000 loss and >250 victims; scope of jointly undertaken activity contested. | Limited involvement; disputes only foreseeability, not scope. | Court affirmed foreseeability finding; waived scope challenge; affirmed Dumitru's sentence. |
| Proceeds for money laundering (Fechete) | Funds wired to Romania constitute proceeds; concealment theory applies. | Proceeds must be net profits; Santos II applies; risk of merger. | Conviction for money laundering stands; not plain error on proceeds definition under concealment theory. |
| Aggravated identity theft | Passport used in fraud constitutes identity theft. | No proof of knowledge that passport belonged to another person. | Conviction vacated; Flores-Figueroa standard applied; not proven beyond reasonable doubt. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (reasonable-review standard for sentencing fins; procedural errors)
- Rita v. United States, 551 U.S. 338 (U.S. 2007) (presumption of reasonableness for within-guidelines sentences)
- Scialabba v. United States, 282 F.3d 475 (7th Cir. 2002) (proceeds means net income for money-laundering under §1956(a)(1))
- Santos v. United States (Santos I), 461 F.3d 886 (7th Cir. 2006) (net vs gross proceeds; promotional money laundering context)
- Santos v. United States (Santos II), 553 U.S. 507 (U.S. 2008) (plurality on proceeds meaning; narrow to net profits with caveats)
- Lee v. United States, 558 F.3d 638 (7th Cir. 2009) (net proceeds discussion; unsettled Santos II impact)
- Hodge v. United States, 558 F.3d 630 (7th Cir. 2009) (net vs gross proceeds; unsettled law after Santos II)
- Salem v. United States, 597 F.3d 877 (7th Cir. 2010) (scope and foreseeability in §1B1.3(a)(1)(B) analysis)
- Adeniji v. United States, 221 F.3d 1020 (7th Cir. 2000) (relevant conduct and loss attribution under §1B1.3)
- United States v. Coffman, 94 F.3d 330 (7th Cir. 1996) (nature of wire fraud and its completion)