USA v. Aida Salem and Bogdan Ganescu, 10-3682 & 3715.
Between November 2003 and at least August 2006, more than two thousand fell victim to the internet fraud scheme in which Salem and Ganescu participated with others. Individuals outside the United States, often based in Romania (the “foreign co-schemers”), posed as sellers of goods on eBay and other internet auction sites.
The victims of the scheme were directed to send payment by wire transfer, typically through Western Union. The foreign co-schemers developed a network of individuals in the United States, including numerous co-schemers in the Chicago area, who collected payment using false identifications. The co-schemers kept a percentage of the proceeds for themselves and forwarded the remainder to the foreign co-schemers.
Following their guilty pleas, Salem and Ganescu were sentenced and then appealed. They argued that the district court erred in applying U.S.S.G. § 1B1.3(a)(1)(B) and in making its relevant conduct findings.
We review the district court’s interpretation and application of the sentencing guidelines de novo and review its factual findings for clear error. United States v. Wright, Nos. 10-1249 & 10-1956.
Under U.S.S.G. § 1B1.3(a)(1)(B), “a defendant may be held accountable for the conduct of others ‘if that conduct was in furtherance of a jointly undertaken criminal activity and reasonably foreseeable in connection with that criminal activity.’ ” United States v. Fouse, 578 F.3d 643, 653 (7th Cir. 2009). The defendants argue that to establish jointly undertaken criminal activity, the government had to prove that they “assisted or agreed to promote” a coconspirator’s conduct, which they interpret as “doing something to help the co-conspirator commit his/her criminal acts.”
None of our cases requires that a defendant at the bottom of a conspiratorial hierarchy or pyramid engage in some affirmative conduct to help a co-conspirator commit each of his or her criminal acts before the defendant may be held accountable for such acts. Rather, the district court “may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others.” U.S.S.G. § 1B1.3 cmt. n.2.
Several factors are relevant in determining the scope of jointly undertaken criminal activity: (1) the existence of a single scheme, see United States v. Adeniji, 221 F.3d 1020, 1028 (7th Cir. 2000); (2) similarities in modus operandi, see id. 1028-29 (noting that the defendants “took virtually identical steps in setting up mailing addresses and bank accounts for the fictional . . . vendors” closely in time); (3) coordination of activities among schemers, see id. at 1028 (multiple telephone calls between phones associated with the defendants confirmed that they were coordinating their activities; (4) pooling of resources or profits, see Adeniji, 221 F.3d at 1028 (sharing of proceeds); U.S.S.G. § 1B1.3 cmt. n.2, illus. (c)(6); (5) knowledge of the scope of the scheme, see United States v. Thomas, 199 F.3d 950, 954 (7th Cir. 1999); and 6) length and degree of the defendant’s participation in the scheme, see id.
On remand, the district court made appropriate findings regarding jointly undertaken criminal activity, and its findings are well-supported by the record and reasonable inferences drawn therefrom. In this case, there is a single scheme, similarities in modus operandi, coordination of activities among co-schemers, and sharing of resources, including information and rides to currency exchanges. Further, both Salem and Ganescu knew of the scope of the scheme and participated in it fully and for a lengthy time period-more than two years.
The district court made appropriate findings on remand, and its findings are supported in the record. We therefore AFFIRM its judgments.