The opinion of the court was delivered by: DALZELL
This Memorandum shall constitute our findings of fact and conclusions of law regarding the amount of "loss" defendant Zdzislaw Rusznica, convicted of bank fraud in violation of 18 U.S.C. § 1344, caused pursuant to U.S.S.G. § 2F1.1(b)(1) and applicable case law. We will assume the reader is familiar with our Memorandum detailing our legal analysis and findings with respect to Rusznica's co-defendant, Jan Kaczmarski, United States v. Kaczmarski, 939 F. Supp. 1176, 1996 U.S. Dist. LEXIS 12072, 1996 WL 466953 (E.D. Pa. 1996).
As will be seen below, Rusznica's story is different in kind from Kaczmarski's. Given his modest involvement in the scheme, Rusznica contends that the loss attributable to him must be limited to $ 9,800, the amount of the check drawn on the CoreStates account that Rusznica presented for payment on September 15, 1996. The Government argues that Rusznica intended to cause "at least a loss in excess of $ 70,000", claiming that Rusznica believed that he could make two withdrawals of just under $ 10,000 from each account each day, for a total of just under $ 40,000 per day, and that he could withdraw money for a total of three days. Government Memorandum Regarding Calculation of Amount of Loss at 7. We disagree with both parties.
Putting aside the Government's problematic arithmetic ($ 40,000 per day times three days equals $ 120,000, not $ 70,000), the Government has failed on its burden of proof as to Rusznica's intended loss. First, we do not believe, as the Government suggests, that Rusznica's knowledge of the federal structuring laws inevitably means that he intended to cause over $ 70,000 in loss, since on its face the colloquy in question with the Government's cooperating witness, Sroka, was nothing more than an amateur course on "smurfing".
Second, the Government presented no evidence that Rusznica knew of the total amount of money supposedly on deposit in the accounts. All the Government showed is that Rusznica knew that the plan was to withdraw something from both banks that day. Finally, and most importantly, there is evidence that if Rusznica knew the actual scope of the bank fraud, he would not have agreed to participate:
Sliwowski: You know him, John, why is he so nervous . . . (unintelligible). [Referring to Rusznica as he was in the bank.]
Kaczmarski: No, he is calm. But you know, it is upsetting, because, you know . . . .
Sroka: . . . (unintelligible) . . . calm.
Kaczmarski: Hey, (obscenity) that's why I say, to not reveal to him, to not, to not talk in his presence about some stupid things, because . . . .
Sliwowski: (unintelligible) . . . relaxed.
Kaczmarski: Listen, if he figures out what is the deal (obscenity), he won't enter the bank. Nobody will. Would you go to the bank, if you knew what's going on?
Even the Government's own cooperating witness understood that Rusznica was not a partner in the bank fraud, and was ...