United States v. Bogdanov
2017 U.S. App. LEXIS 12426
| 7th Cir. | 2017Background
- Branko Bogdanov pleaded guilty to conspiracy and a substantive count under 18 U.S.C. § 2314 for a decade-long family shoplifting and resale operation that sold stolen retail goods online and to a middleman ("Individual A").
- Law enforcement surveillance, traffic stops, store video, and a home search produced seized retail goods and tied sales to eBay accounts; the family home was identified as a forfeitable asset.
- The plea agreement acknowledged a long-running conspiracy and forfeiture of the home but disputed the total loss amount; government estimated >$8.5M, Bogdanov contended $15,000–$40,000.
- A district court evidentiary hearing admitted testimony from a Barnes & Noble investigator and a Secret Service agent; the investigator’s method: tally Individual A’s eBay sales (2007–2014), adjust for non-Bogdanov items, add family-account sales, then increase 25% to approximate retail value.
- The court found a loss of about $3.5M (yielding an 18-level guidelines increase) and entered a $2.8M preliminary forfeiture (25% discount from loss as proceeds deduction). Bogdanov appealed, challenging evidentiary sufficiency for loss and forfeiture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to attribute loss/forfeiture to Bogdanov | Government: proof by preponderance via plea admissions, surveillance, seized goods, eBay records, and Individual A’s consistent statements | Bogdanov: government failed to show goods were stolen or that he supplied them; reliance on hearsay and an unavailable informant | Court: Affirmed — preponderance standard met; circumstantial evidence plus plea admissions sufficient; no need to trace each item |
| Reliance on hearsay/unavailable informant (Individual A) | Government: hearsay permissible at sentencing; corroborated written, video, and investigative statements rendered testimony reliable | Bogdanov: Individual A was an identified criminal and unavailable for cross-examination, so testimony is unreliable | Court: Affirmed — sentencing evidentiary rules are relaxed; district court reasonably found Individual A’s statements reliable |
| Use of victim (corporate) investigator’s loss calculation | Government: investigator’s reasonable methodology produced an acceptable estimate of loss | Bogdanov: victim-driven calculation is biased and prejudicial; methodology unreliable | Court: Affirmed — victim-performed calculations are acceptable if method reasonable; Bogdanov failed to show methodological error |
| Application of joint/several forfeiture principles post-Honeycutt | Bogdanov: implied challenge that co-conspirator proceeds may be wrongly attributed | Bogdanov did not press a Honeycutt-based challenge on appeal | Court: Not addressed on the merits; noted Honeycutt but declined review because defendant waived that argument |
Key Cases Cited
- United States v. Orillo, 733 F.3d 241 (7th Cir. 2013) (loss for sentencing based on defendant-attributable conduct; clear-error review)
- United States v. Ali, 619 F.3d 713 (7th Cir. 2010) (preponderance standard for loss/restoration and joint analysis of related sentencing/forfeiture challenges)
- United States v. Segal, 495 F.3d 826 (7th Cir. 2007) (forfeiture is gain-based, focusing on proceeds)
- United States v. Miller, 782 F.3d 793 (7th Cir. 2015) (hearsay may be considered at sentencing; reliability is the touchstone)
- United States v. Sewell, 780 F.3d 839 (7th Cir. 2015) (reliability governs admission of hearsay at sentencing)
- Honeycutt v. United States, 137 S. Ct. 1626 (U.S. 2017) (defendant cannot be held jointly and severally liable under § 853 for property a co-conspirator acquired if defendant did not acquire it)