United States v. Abiodun, et al., No. S7 CR. 1316 (DC), 2006 WL 2092468 (S.D.N.Y. July 20, 2006)
The defendants pleaded guilty to participating in a massive identity theft ring that was responsible for the theft of credit information for tens of thousands of individuals and the loss of tens of millions of dollars. At sentencing, the court was required to determine the amount of loss attributable to each of three defendants. But the court had some problems in doing the math.
Specifically, to identify victims, the Government conducted a survey. The court, however, concluded that number of individuals who responded to the survey was "understated." Similarly, information provided by financial institutions was "grossly understated" because it did not include information from all affected financial institutions. Moreover, the Government was "not able to prove that specific credit reports resulted in specific fraudulent purchases that can be tied to a particular defendant." And, the court knew neither "which credit reports were specifically purchased by" each defendant, nor "the precise losses attributable to the credit reports purchased by" each defendant.
The court did, however, know how many credit reports each defendant had purchased. And the Government offered an "average loss sustained per credit report." So, the court did simple math to determine loss figures -- it multiplied the number of credit reports purchased by each defendant by the average loss per credit report offered by the Government.
Seems to me that the defense attorneys were right on this one when they argued that the approach adopted by court "relies on speculation." Indeed, it does not go without noting that the court cited no authority for the means it applied in calculating loss.
Loss cannot always be calculated with absolute certainty. And the Guidelines do not require absolute certainty. Indeed, they only require a reasonable estimate. But there must be a line between a reasonable estimate and pure speculation. Did the foregoing analysis cross that line? Or, put another way, did the defendants here suffer because neither the court nor the Government could accurately calculate loss?
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