United States v. Kathryn Garten
777 F.3d 392
7th Cir.2015Background
- Kathryn Garten, a telemarketer for National Solutions, was indicted for conspiracy to commit mail and wire fraud in telemarketing and convicted after a four-day jury trial. She was sentenced to 168 months imprisonment, five years supervised release, and $909,278 restitution.
- National Solutions, run by Leandro Velazquez, marketed alleged buyers for timeshares and obtained up‑front fees purportedly held in trust; in reality no buyers or closings existed and the fees were nonrefundable advertising charges.
- The FTC investigated, obtained a temporary restraining order and raided National Solutions’ offices; agents seized documentation including Garten’s sales logs and IDs showing use of aliases.
- Co‑worker Arantzazu Atorrasagasti pleaded guilty and cooperated at trial, testifying that Garten used the false "buyer pitch" and discussed the absence of real buyers; multiple victims testified and some had recorded conversations with Garten using an alias.
- Government evidence (sales logs, bank records, victims’ recorded calls, investigator testimony) showed National Solutions received roughly $6 million net from the scheme; district court attributed that loss to Garten for sentencing and applied a large loss enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence for conspiracy conviction | Garten contends evidence did not show she knew the conspiracy’s scope or intended to participate | Government: recordings, witness testimony, and inconsistencies in Garten’s statements proved knowledge and intent | Conviction affirmed; evidence was sufficient when viewed in government’s favor |
| District judge’s on-the-record comment overruling objection to characterization of gross amount as "stolen" | Garten argued the judge’s remark improperly vouched for government testimony | Government: comment addressed admissibility/context and left credibility to jury | No reversible error; comment, in context, did not improperly decide guilt for the jury |
| Testimony that co‑conspirator Picache pleaded guilty (Picache did not testify) | Garten argued eliciting Picache’s guilty plea denied fair trial (no cross-examination) | Government conceded error but argued it was harmless given overwhelming evidence | Error found but harmless (no plain error) due to fleeting reference and strong inculpatory evidence |
| Amount of loss for sentencing (nearly $6 million) | Garten argued loss calculation was speculative and included legitimate business activity | Government offered bank records and investigator testimony showing net deposits ≈ $6M and lack of legitimate documentation | Sentencing finding affirmed; district court did not clearly err in attributing $2.5–$7M loss range to Garten |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of evidence in criminal convictions)
- United States v. Squibb, 534 F.3d 668 (7th Cir. 2008) (reviewing trial evidence in light most favorable to government)
- United States v. Brandt, 546 F.3d 912 (7th Cir. 2008) (standard when defendant failed to renew judgment-of-acquittal motion)
- United States v. Molton, 743 F.3d 479 (7th Cir. 2014) (sufficiency-of-evidence review statement)
- United States v. Anderson, 580 F.3d 639 (7th Cir. 2009) (elements for conspiracy conviction: knowledge of nature/scope and intent to participate)
- United States v. Rosen, 726 F.3d 1017 (7th Cir. 2013) (clear‑error review of loss calculation at sentencing)
- United States v. Newman, 965 F.2d 206 (7th Cir. 1992) (plain‑error harmlessness discussion)
- United States v. Vasquez, 673 F.3d 680 (7th Cir. 2012) (plain‑error review standard)