U.S. v. Smith

Full title: UNITED STATES OF AMERICA v. DANIEL W. SMITH Defendant

Court: United States District Court, N.D. California

Date published: Jan 23, 2004

Case Number CR 97-0340 MHP (N.D. Cal. Jan. 23, 2004)

Opinion

Case Number CR 97-0340 MHP

January 23, 2004

AMENDED JUDGMENT IN A CRIMINAL CASE (For Offense(s) Committed On or After November 1, 1987)

MARILYN PATEL, Chief Judge District

The defendant, DANIEL W. SMITH, was represented by Philip Schnayerson, ret.

On motion of the United States, the court has dismissed count(s) 1-25, 27-38

The defendant pleaded guilty to count(s) 2. Accordingly, the defendant is adjudged guilty of the following count(s), involving the indicated offense(s):

Title Section Nature of Offense Count Number(s) 18 U.S.C. § 1341 2

, (b) Mail Fraud, Willfully Causing an Offense to be Committed 26 As pronounced on July 27, 1998, the defendant is sentenced as provided in pages 2 through 9 of this Judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. The court's bench order at sentencing is deemed incorporated.

It is ordered that the defendant shall pay to the United States a special assessment of $100.00, for count(s) 2, which shall be due immediately.

It is further ordered that the defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this Judgment are fully paid.

Defendant's SSAN: XXX-XX-XXXX

Defendant's Date of Birth: 08/11/60

Defendant's address: 41353 Thurston Street; Fremont, CA. 94538

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 15 months.

The defendant shall surrender voluntarily to a facility of the Bureau of Prisons to which he is assigned, or if no assignment made, to the custody of the United States marshal for this district not later than September 28, 1998 at 2:00 p.m. pursuant to the Voluntary Surrender Order issued to him at sentencing.

RETURN

I have executed this Judgment as follows: _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________ _________________________________________________________________________

Defendant delivered on _________ to_______________ at ____________, with a certified copy of this Judgment.

_____________________

United States Marshal

By_________________

Deputy Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of 36 months. The Probation Office shall provide the defendant with a copy of the standard conditions and any special conditions of supervised release.

STANDARD CONDITIONS OF SUPERVISED RELEASE

While the defendant is on supervised release pursuant to this Judgment:

1) The defendant shall not commit another federal, state, or local crime; specifically, the defendant shall not illegally possess a controlled substance and shall not own or possess a firearm or destructive device.

2) The defendant shall not leave the judicial district without the permission of the court or probation officer.

3) The defendant shall report to the probation officer as directed by the court or probation officer and shall submit a truthful and complete written report within the first five days of each month.

4) The defendant shall answer truthfully all inquiries by the probation officer, shall provide the probation officer access to requested financial information, and shall follow the instructions of the probation officer.

5) The defendant shall support his or her dependents and meet other family responsibilities.

6) The defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons.

7) The defendant shall notify the probation officer ten (10) days prior to any change in residence or employment. (On change of residence to a new jurisdiction of a person convicted either of a crime of violence or of a drug trafficking offense, the Probation Office is responsible for complying with the notice provisions of 18 U.S.C. § 4042(b).)

8) The defendant shall refrain from excessive use of alcohol, except that a defendant while in the Drug and Alcohol Intensive Counseling and Aftercare Service Program (DAICASP) (or comparable program in another district) shall consume no alcohol. The defendant shall not purchase, possess, use, distribute or administer any narcotic or other controlled substance, or any paraphernalia related to such substances.

9) The defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered.

10) The defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer.

11) The defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer.

12) The defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer.

13) The defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court.

14) The defendant shall comply with any directions from the probation officer to serve notice of third party risks the defendant may pose, and shall cooperate with the officer's efforts to confirm compliance.

15) The defendant shall comply with the schedule of payments imposed by the probation officer to satisfy the balance of any monetary obligation resulting from the sentence imposed in this case. Further, the defendant shall notify the probation office of any change in the defendant's economic circumstances that might affect the defendant's ability to pay a fine, restitution, or assessment fee.

16) Unless excused by a special condition of supervised release in this Judgment or by a subsequent court order, the defendant shall comply with 18 U.S.C. § 3583(d) regarding mandatory drug testing. A positive urinalysis may result in the defendant's placement in the probation office's Drug and Alcohol Intensive Counseling and Aftercare Service Program (DAICASP) (or comparable program in another district) at the direction of the probation officer.

17) The defendant may be placed in the probation office's Drug and Alcohol Intensive Counseling and Aftercare Service Program (DAICASP) (or comparable program in another district) by virtue of a special condition of supervision contained in this Judgment, at the direction of the probation officer after a positive urinalysis, or a court order entered during the period of supervision for other good cause shown. This program may include (a) testing by the probation officer or an approved vendor to detect drug or alcohol abuse, (b) a mandatory drug education program (which may include individual or group counseling provided by the probation office or an approved vendor), (c) placement in a residential treatment program or community corrections center for up to 180 days at the direction of the probation officer (with the defendant to pay the cost of subsistence if the probation officer determines that the defendant has the ability to do so), and (d) home confinement subject to electronic monitoring for a maximum period of 90 days at the direction of the probation officer (with the defendant to pay the cost of monitoring if the probation officer determines that the defendant has the ability to do so).

18) The defendant shall report in person, within 72 hours of release from the custody of the Bureau of Prisons, to the probation office in the district where the defendant is released.

SPECIAL CONDITIONS OF SUPERVISION

While the defendant is on supervised release pursuant to this Judgment:

1) The defendant shall pay any special assessment and fine that is imposed by this judgment.

2) The defendant shall submit his person, residence, office, vehicle, or any property under his control to a search. Such search shall be conducted by a U.S. Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband, or evidence of a violation of a condition of release; failure to submit to a search may be grounds for revocation; and, the defendant shall warn other residents that the premises may be subject for searches pursuant to this condition.

3) The defendant shall provide the Probation Officer with access to any financial information.

4) The defendant shall not open any new lines of credit and/or shall not incur new debt without prior permission of the Probation Officer.

5) The defendant shall not open, own, or operate his own business without the consent of the Probation Officer.

6) The defendant shall perform 100 hours of community service.

7) The defendant shall pay restitution as set forth on page eight herein.

RESTITUTION AND FORFEITURE RESTITUTION

The court, pursuant to the Victim and Witness Restitution Act, finds that the following is/are victim(s) of defendant's criminal conduct and has/have sustained loss in the indicated amounts and orders restitution by the defendant as follows: Name address of payee(s) Amount Sudhanshu Ghoshal 140 Cottonwood Lane Danville, CA. 94506 Marino Aganon $95.00 165 Morton Drive Daly City, CA. 94105 Howard Aschwald $2,760.00 90 Corte Placida Greenbrae, CA 94904 Randy Borene $1,675.00 15400 Winchester Bldv, #32 Los Gatos, CA 95030 Charles Bynum $395.00 6704 23rd Avenue Belmont, CA. 94402 Kathryn Capone $345.00 3118 East Hermosa Vista Drive Mesa, AZ. 85213-2414 Anthony Ching $2,145.00 Teodor Ciupitu $505.00 2622 Monserat Avenue Belmont, CA. 94002 Rita Cornelia $2,840.00 7463 West Foothill Drive Glendale, AZ. 85310 Frank Cotter $1,190.00 1412 Cedar Bluff Lane Flower Mound, TX. 95028 Stuart Crawford $1,390.00 4619 Rouisllon Avenue Fremont, CA. 94555 Barbara Crowell $11,380.00 19831 Labrador Street Chatsworth, CA. 91311-5617 David Drake $1,190.00 12086 Elm Way Thorton, CA 80241 Hernando Esquerra $395.00 1242 Notting Hill Drive San Jose, CA. 95737 Stanley Forest $2,795.00 928 Lupin Way San Carlos, CA. 94070 Leona Cleaner $5,390.00 1308 Moringsdale Avenue South San Francisco, CA. 94080 $5,790.00 Don Gionetti $2,300.00 San Francisco, CA Joanne Guss $445.00 7443 Stonegate Drive Pleasanton, CA. 94588 Terry Hall $1,100.00 Clo Hampton $1,885.00 Barbara Hart $650.00 5 Audrey Court Tiburon, CA. 94970 Randy Hadduck $395.00 5936 South Davis Pineville, OR. Christopher Honore $1,260.00 FNU Garcia $395.00 Christopher Lam $6,025.00 1371 Meadow Ridge Circle San Jose, CA. 95131 David Lancaster $2,390.00 17740 SW Scholls Ferry Road Beaverton, OR. 97007 David Lowe $2,490.00 1547 Boxwood Avenue San Leandro, CA 94575-1363 David Luetkenhaus $965.00 506 South Laredo Circle Aurora, CO. 80017-2106 Thomas Ma $1,990.00 7138 Oakland Avenue Piedmont, CA. 94513 Edith McGinnis $395.00 PO Box 601601 South Lake Tahoe, NV. 96153 Mark Moody $2,295.00 5428 Aegean Way Las Vegas, NV. 89129 Norman Moore $395.00 2263 Rolla Road Pineville, OR. 97754 Ernest Horton $5,195.00 4105 Linwood Drive San Jose, CA. 95124 Lesley Johnson $2,495.00 1735 SE 23rd Avenue Portland, OR. 97214-3953 David Otewalt $1,740.00 6148 Willowgrove Lane Cupertino, CA. 95014 Ali Rashid $8,361.00 189 Belwood Gateway Los Gatos, CA. 95032 Marvin Raudez $1,386.00 30575 Midlothian Way Hayward, CA. 94544 Gilbert Reinke $2,540.00 7133 West Bloomfield Road Peoria, AZ. 85381-9520 Brit Rowland $295.00 Pleasanton, CA. Robert Schirrmacher $3,245.00 1770 Braddock Court San Jose, CA. 95125 Pamela Shedd $1,190.00 298 North Avenue Brockton, MA. 02402-1529 Jonathon Murti $2,630.00 6 Heidi Lane Millbrae, CA 94030 Harold Sims $2,740.00 8184 Terrace Drive El Cerrito, CA. 94530 Richard Steiner $2,000.00 7 Cibrian Drive Tiburon, CA. 94920 Mary Tonna $2,740.00 30 Molony Court Redwood City, CA 94020 Tim Towne 4336 Lisbon Court $295.00 Denver, CO. 80249 Mary Tran $390.00 PO Box 590872 San Francisco, CA. 94159 Mary Wakefield $1,190.00 225 Lincoln Street, #J-2 Duxbury, MA. 02332-3632 Robert Walkoski $3,045.00 4124 Jewell Road Bothel, WA. 98102 Philo Stocker $395.00 7 Main Street Walden, MA. 02149 Zig Shuster $395.00 675 Madonna Way Los Gatos, CA. 94024 Jerome Wilkes $2,495.00 7155 Wethersfield Road Peoria, AZ. 85281 Bessie Williams $1,990.00 695 South Knickerbocker Drive, #2 Sunnyvale, CA. 94159 Elaine Yee $1,815.00 PO Box 591604 San Francisco, CA. 94159 Robert Wiley $2,100.00 1735 SE 23rd Avenue Portland, OR. 97214-3953 Payments of restitution are to be made to Clerk, U.S. District Court, for transfer to the payee(s).

Restitution is due and payable immediately and may be collected in accordance with the Bureau of Prisons Inmate Financial Responsibility Program.

If there are multiple payees, any payment not made directly to a payee shall be divided proportionately among the payees named unless otherwise specified here: In the extent restitution is not payed upon completion of sentence, defendant shall pay the balance during his supervised release upon such terms as set by his Probation Officer.

STATEMENT OF REASONS

The court adopts the factual findings and guideline application in the presentence report. Guideline Range Determined by the Court: Total Offense Level: 12 Criminal History Category: III Imprisonment Range: 15 months to 21 months Supervised Release Range: 3 years Fine Range: $3000 to $30000 Restitution: $116322 as set forth herein. The court declines to impose a fine because payment of a fine would interfere with the defendant's ability to pay restitution.

The sentence is within the guideline range, that range does not exceed 24 months, and the court finds no reason to depart from the sentence called for by application of the guidelines.

The restitution ordered herein shall stand as a judgment in the amount of $116,322.00 and is enforceable under 18 U.S.C. § 3663(h).