Opinion
09 Cr. 1165-01 (RWS).
October 7, 2010
SENTENCING OPINION
On April 14, 2010, Nicoloie Munteanu, a/k/a "Darius Navickas," a/k/a "Dmitriy," ("Munteanu" or "Defendant") pleaded guilty to one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. For the reasons set forth below, Munteanu will be sentenced to 41 months' imprisonment to be followed by three years' supervised release. Munteanu will also be required to forfeit the proceeds from his offense and pay a special assessment of $100.
Prior Proceedings
On December 9, 2009, Indictment 09 CR 1165-01 (RWS) was filed in the Southern District of New York. Count 1 charges that from December 2008 to July 2009, in the Southern District of New York and elsewhere, Defendant, and others known and unknown, conspired to violate 18 U.S.C. § 1349. It was a part of the conspiracy that Defendant and others known and unknown devised a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses and, for the purpose of executing such scheme, transmitted and caused to be transmitted by means of wire and radio communications in interstate commerce a writing, sign, signal, picture, and sound, in violation of 18 U.S.C. § 1349.
On April 14, 2010, Munteanu appeared before the Honorable Ronald L. Ellis in the Southern District of New York and allocuted to Count 1 pursuant to a plea agreement.
Munteanu's sentencing is currently scheduled for October 5, 2010.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the advisory Guidelines. Thus, the sentence to be imposed here is the result of a consideration of:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 114-15.
The Defendant
The Court adopts the facts set forth in the Presentence Investigation Report ("PSR") with respect to Munteanu's personal and family history.
The Offense Conduct
The following description draws from the PSR. The specific facts of the underlying conduct are adopted as set forth in that report.
This case was investigated by special agents with the Federal Bureau of Investigation ("FBI"). The FBI case agent spoke with an employee of Bank of America ("Employee-1") and learned that Bank of America received from both the FBI and from victims themselves copies of documents reflecting complaints from over 50 victims (the "Victim Reports") regarding a fraudulent online scheme. Employee-1 informed that the fraudulent online scheme involved victims who attempted to purchase goods online and wired money to sellers, but who never received the goods.
The case agent reviewed records provided by Bank of America. These records included the Victim Reports, records of account openings, records of ATM withdrawals, including photographs of the individual making the withdrawal, records of withdrawals from teller windows, including photographs of the individual making the withdrawal, and records of wire transfers. The following was learned.
The First Eight Accounts
From December 16, 2008 through April 1, 2009, eight accounts were opened at branches of Bank of America in Manhattan. Wire transfers were made into these accounts from the accounts of individuals who were victims of the fraudulent online scheme. The wire transfers were intended to pay for goods that the victims had purchased over the internet — goods that the victims never received.
Artur Dubceac, a/k/a "Vincente Mirente," a/k/a "Dann Forsstrom," a/k/a "Ast Tisinienl," using an ATM card or another means of identification made withdrawals from the eight accounts.
The Ninth Account
On April 10, 2009, an account ("Account-9") was opened at a branch of Bank of America in Manhattan. Account-9 was opened in the name of an individual ("Individual-9"), and Bank of America was presented with a Lithuanian Passport in Individual-9's name.
On May 8, 2009 and May 11, 2009, approximately two wire transfers totaling approximately $23,500 were made into Account-9 from the accounts of other individuals (additional victims). According to the Victim Reports, each one of these two victims stated that these wire transfers were intended to pay for goods that the victims had purchased over the Internet — goods that the victims never received.
On May 11, 2009, Munteanu, using an ATM card or another means of identification in Individual-9's name containing a photograph, made a withdrawal from Account-9 at a teller window at a Bank of America location in Miami, Florida. This withdrawal totaled approximately $11,000. Employee-1 advised the case agent that Bank of America records indicated that each withdrawal from Account-9 was made by the use of either an ATM card in the name of Individual-9 or a means of identification containing a photograph in the name of Individual-9. The case agent reviewed bank surveillance photographs taken during each of the withdrawals from Account-9 specified above and has observed Munteanu in person since he was arrested. The surveillance photographs taken during the withdrawals from Account-9 referenced above depict Munteanu.
The Tenth and Eleventh Accounts
On May 6, 2009, an account ("Account-10") was opened at a branch of Bank of America in Manhattan. On May 19, 2009, an account ("Account-11") was opened at a branch of Bank of America in Key Biscayne, Florida. Account-10 was "linked" with Account-11. Account-10 and Account-11 were opened in the name of an individual ("Individual-10"), and Bank of America was presented with a Lithuanian Passport and a Lithuanian Driver's License in Individual-10's name. The case agent reviewed bank surveillance photographs taken during the opening of Account-11 and has observed Munteanu in person since he was arrested. The surveillance photographs taken during the opening of Account-11 referenced above depict Munteanu.
On July 7, 2009 and July 10, 2009, approximately two wire transfers totaling approximately $31,000 were made into Account-10 from the accounts of other individuals (additional victims). According to the Victim Reports, each one of these two victims stated that these wire transfers were intended to pay for goods that the victims had purchased over the Internet — goods that the victims never received.
From July 8, 2009 to July 13, 2009, Munteanu, using an ATM card or another means of identification in Individual-10's name containing a photograph, made approximately five withdrawals from Account-11 at teller windows at Bank of America locations in Miami and Aventura, Florida and one withdrawal from an ATM machine in Miami. These withdrawals totaled approximately $31,000. Employee-1 advised the case agent that Bank of America records indicated that each withdrawal from Account-11 was made by the use of either an ATM card in the name of Individual-10 or a means of identification containing a photograph in the name of Individual-10. The case agent reviewed bank surveillance photographs taken during each of the withdrawals from Account-11 specified above and has observed Munteanu in person since he was arrested. The surveillance photographs taken during the withdrawals from Account-11 referenced above depict Munteanu.
On October 8, 2009, Dubceac and Munteanu were arrested by FBI agents. A search was performed on Dubceac, and the following items were found on his person: a Finnish Passport and an International Driver's License in the name "Dann Forsstrom," and a Lithuanian Passport and Lithuanian Driver's License in the name "Ast Tisiniel." Each of these four documents contains a photograph that appears to depict Dubceac. In addition, agents found temporary Bank of America debit cards without names on them on Dubceac's person.
A search was performed on Munteanu and the following item was found: a Lithuanian Passport in the name "Darius Navickas," which contained a photograph that appears to depict Munteanu.
According to the Government, Munteanu is being held accountable for between $400,000 and $1,000,000 in losses and there were over 50 victims in this case as a whole, although Munteanu is deemed responsible for between 10 and 50 victims as he joined the conspiracy in April 2009. Munteanu is being held accountable for withdrawals made by himself and his co-conspirators that would be reasonably foreseeable to him commencing from his arrival in the United States in April 2009. The government indicated that they have records showing that the money withdrawn by Munteanu and his co-conspirators was sent to overseas co-conspirators who directed the scheme.
The Relevant Statutory Provisions
Pursuant to 18 U.S.C. § 1349, the maximum term of imprisonment is 30 years.
If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than five years, pursuant to 18 U.S.C. § 3583(b)(1).
Defendant is not eligible for probation because the instant offense is a Class B felony, pursuant to 18 U.S.C. § 3561(a)(1).
The maximum fine that may be imposed is $1 million, pursuant to 18 U.S.C. § 3571. A special assessment of $100 is mandatory, pursuant to 18 U.S.C. § 1349.
The Guidelines
The November 1, 2009 edition of the United States Sentencing Commission Guidelines Manual has been used in this case for calculation purposes, pursuant to § 1B1.11(a). The Court finds the following with respect to Defendant's applicable offense level, criminal history, recognition of responsibility, and term of imprisonment:
The guideline for the violation of 18 U.S.C. § 1349 is found in § 2B1.1. Section 2B1.1(a)(1) provides for a base offense level of seven, as the offense has a statutory maximum term of greater than 20 years. As the loss amount in this case is between $400,000 and $1,000,000, a 14-level increase in the offense level is warranted pursuant to § 2B1.1(b)(1)(H). As the offense involved more than 10 victims, a two-level increase in the offense level is warranted, pursuant to § 2B1.1(b)(2)(A). Because a substantial part of the offense was occurred from outside the United States, a two-level increase in the offense level is warranted, pursuant to § 2B1.1(b)(9)(B). These factors combine to increase the offense level to 25.
Based on his statement and plea allocution before the Court, Defendant has recognized his responsibility for the offense. Pursuant to § 3E1.1(a), the offense is reduced two levels. Furthermore, an additional one-level reduction is warranted, pursuant to § 3E1.1(b), because Defendant gave timely notice of his intention to enter a plea of guilty, thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently.
Accordingly, the applicable offense level is 22.
According to the FBI and New York State Division of Criminal Justice Services, Bureau of Identification, Munteanu has no prior criminal convictions. Therefore, Munteanu has zero criminal history points and a Criminal History Category of I, pursuant to the table at Chapter 5, Part A, of the Guidelines.
Based on a total offense level of 22 and a Criminal History Category of I, the Guidelines range for imprisonment is 41 to 51 months.
The Guidelines range for a term of supervised release is three to five years, pursuant to § 5D1.2(a)(1). If a sentence of one year or less is imposed, a term of supervised release is not required but is optional, pursuant to § 5D1.1(b).
Defendant is not eligible for probation because the applicable guideline range is in Zone D of the Sentencing Table, pursuant to § 5B1.1, Application Note #2.
The fine range for the instant offense is $7,500 to $1 million, pursuant to § 5E1.2(c)(3)(A) and (c)(4). Subject to Defendant's ability to pay, in imposing a fine, the Court shall consider the expected costs to the Government of any imprisonment, probation, or supervised release pursuant to § 5E1.2(d)(7). The most recent advisory from the Administrative Office of the United States Courts suggests a monthly cost of $2,270.93 to be used for imprisonment, a monthly cost of $317.32 for supervision, and a monthly cost of $2,063.19 for community confinement.
The Remaining Factors of 18 U.S.C. § 3553(a)
Having engaged in the Guidelines analysis, this Court also gives due consideration to the remaining factors identified in 18 U.S.C. § 3553(a) to impose a sentence "sufficient, but not greater than necessary," as is required by the Supreme Court's decision in Booker, 543 U.S. 220, and the Second Circuit's decision in Crosby, 397 F.3d 103. In light of the Court's statutory responsibility "to `impose a sentence sufficient, but not greater than necessary' to accomplish the goals of sentencing," Kimbrough v. United States, 552 U.S. 85, 102 (2007) (quoting 18 U.S.C. § 3553(a)), and having considered the Guidelines and all of the factors set forth in § 3553(a), it is determined that a Guidelines sentence is warranted in the instant case.
The Sentence
For the instant offense, Munteanu will be sentenced to 41 months' imprisonment and 3 years' supervised release.
Munteanu is directed to report to the nearest United States Probation Office within seventy-two hours of release to commence his term of supervised release. It is recommended that Munteanu be supervised by the district of his residence.
As mandatory conditions of his supervised release, Munteanu shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; (3) not possess a firearm or destructive device; and (4) cooperate in the collection of DNA as directed by the probation officer. The mandatory drug testing condition is suspended based on the Court's determination that Defendant poses a low risk of future substance abuse.
Furthermore, the standard conditions of supervision (1-13), set forth in the judgment, shall be imposed with the additional special conditions:
(1) Defendant shall provide the probation officer with access to any requested financial information.
(2) Defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer unless Defendant is in compliance with the installment payment schedule.
(3) Defendant shall obey the immigration laws and comply with the directives of immigration authorities.
In consideration of all the factors set forth in 18 U.S.C. § 3572(a), it does not appear that the Defendant is able to pay a fine, and so the fine in this case shall be waived.
A special assessment of $100, payable to the United States, is mandatory and shall be due immediately.
Munteanu shall forfeit to the United States, pursuant to 18 U.S.C. §§ 981(a)(1)(C), 982, and 28 U.S.C. § 2461, all property constituting proceeds from the offense. If any of the property subject to forfeiture cannot be located upon the exercise of due diligence, has been transferred to a third party, has been placed beyond the Court's jurisdiction, has been substantially diminished in value, or has been commingled with other property, Munteanu shall forfeit any other property of his up to the value of the forfeitable property, pursuant to 18 U.S.C. § 982(b) and 21 U.S.C. § 853(p).
An Order of Restitution will be delayed for up to 90 days after the sentence is imposed in anticipation of receiving the necessary identifying information from the Government, pursuant to the provisions of 18 U.S.C. § 3664(d)(5).
The terms of this sentence are subject to modification at the sentencing hearing scheduled for October 5, 2010.
It is so ordered.