United States v. Norman
776 F.3d 67
| 2d Cir. | 2015Background
- Defendant David "Jim" Norman was convicted by a jury of conspiracy to commit wire fraud (18 U.S.C. § 1349) based on an advance‑fee investment scheme called the "Jim Norman Program"; victims were promised enormous risk‑free returns but were not paid.
- Trial evidence showed investors wired money into Norman's U.S. bank (the Centura account); Norman spent substantial investor funds on personal items and continued soliciting investors through facilitators.
- Norman testified at trial that millions (he estimated $6–9 million) were collected and that funds were held in World Bank/IMF accounts requiring fees; World Bank and IMF officials denied any such accounts.
- At sentencing the district court (Forrest, J.) calculated a Guidelines offense level of 37 (loss > $2.5M; 50+ victims; sophisticated means) and added a two‑level obstruction increase for willful perjury and false posttrial letters. The Guidelines range capped at 240 months (statutory max), and the court imposed 240 months.
- On appeal Norman challenged the court's use of portions of his trial testimony to increase loss, victim count, and leadership role while simultaneously finding other testimony perjurious (obstruction), and argued the sentence was substantively unreasonable. The Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Norman) | Defendant's Argument (Gov't / Court) | Held |
|---|---|---|---|
| Crediting some trial testimony while finding other parts perjury (obstruction) | Court cannot both credit portions of Norman's testimony to increase Guidelines factors and reject other portions as perjurious to apply §3C1.1 | Factfinder may accept some testimony and reject other parts; perjury finding justified where testimony was willfully false and intended to influence outcome | Affirmed — judge may credit some testimony and separately find willful perjury where supported by record (Dunnigan principle) |
| Loss amount for Guidelines (§2B1.1) | Norman: his $6–9M testimony was extravagant, uncorroborated, inconsistent — insufficient to support >$2.5M loss enhancement | Court relied on Norman's admissions plus bank transfer summaries (GX 327/328) and victim testimony; loss estimation requires only a reasonable estimate by preponderance | Affirmed — preponderance support for >$2.5M loss; estimate reasonable and corroborated |
| Number of victims (50+ for §2B1.1(b)(2)(B)) | Norman: GX 328 and his testimony were vague/inconsistent; government failed to prove 50 victims | Court relied on wire‑transfer list (GX 328) showing well over 100 names and Norman's own testimony that >100 people invested | Affirmed — record supports finding of at least 50 victims |
| Leadership role (§3B1.1) and related findings of participant culpability | Norman: court failed to make sufficient findings that ≥4 other participants were criminally responsible (not unwitting) | Court identified multiple culpable participants (convicted coconspirators and facilitators shown by testimony and documents) including Bowen, Dodakian, Billingsley, Henshaw, etc. | Affirmed — sufficient findings that, including Norman, there were five culpable participants; §3B1.1 enhancement proper |
| Substantive reasonableness of 240‑month sentence | Norman: sentence excessive compared to coconspirators; advanced age, no priors, and limited personal profit justify lower term | Court considered §3553(a) factors (scope, duration, seriousness, risk of recidivism, victims' harm, defendant's conduct post‑verdict) and imposed statutory maximum to protect public | Affirmed — within discretion; not substantively unreasonable |
Key Cases Cited
- Booker v. United States, 543 U.S. 220 (Guidelines are advisory)
- Gall v. United States, 552 U.S. 38 (district court must calculate Guidelines and then consider §3553(a))
- United States v. Dunnigan, 507 U.S. 87 (perjury at trial can support §3C1.1 enhancement if willful and material)
- Harris v. New York, 401 U.S. 222 (limits on use of testimony; defendant’s testimony not a license to commit perjury)
- United States v. Broxmeyer, 699 F.3d 265 (appellate deference to district court sentencing findings)
- United States v. Cavera, 550 F.3d 180 (abuse of discretion standard for substantive reasonableness review)
- United States v. Skys, 637 F.3d 146 (§3B1.1 participant analysis and need for sufficient sentencing findings)
- United States v. Abiodun, 536 F.3d 162 (appellate deference where two permissible views of evidence exist)