name of the check recipient. Funds in the amount of the stolen checks were then intended to be withdrawn from the banks as cash. Kaczmarski was sentenced based on $ 104,000, the entire amount of the stolen checks.
Judge Dalzell found this amount appropriate for sentencing because the defendant intended to defraud the bank of $ 104,000, even though the government itself provided that specific amount in stolen checks, and the defendant only successfully cashed one check in the amount of $ 9,800. The court based its finding on the evidence that the defendant had encouraged the government operative to supply him with $ 100,000 in stolen checks, the defendant orchestrated the scheme, and the government "did not engage in 'extraordinary misconduct' or 'improperly enlarge the scope or scale of the crime.'" Kaczmarski, 939 F. Supp. at 1182.
In Rusznica, Kaczmarski's codefendant was charged with bank fraud amounting to $ 18,400, the amount of the two checks he was asked to cash. However, he only successfully cashed one check for $ 9,800. The court held that he should only be sentenced for the amount of $ 9,800, even though he intended the higher amount, because that was the amount of the actual loss, and that the higher amount would overstate the offense. Rusznica, 939 F. Supp. 1183, 1185 (citing U.S.S.G. § 2F1.1 Application Note 10).
The court reached this conclusion because the higher loss figure came from the government's operative and the defendant was only a peripheral participant who did not coordinate the scheme or approve the amounts to be taken, as other codefendants did. It is an important distinction to note that the court found that the $ 9,800 amount, which was set by the government, was not an unreasonable one nor was it manipulated by the government for sentencing purposes. Id.
Unlike Rusznica, Ms. Nolan-Cooper did not merely have the intention of laundering over $ 100,000 in purported drug proceeds, she was responsible for actually laundering over $ 190,000. She was also not a peripheral participant, she was the orchestrator of the money laundering conspiracy. She is arguably more like Kaczmarski, who had the intention of laundering far more of the purported drug proceeds. But unlike Kaczmarski, she is not being charged with any funds beyond those that were actually laundered.
In Egemonye, the defendant was targeted in a sting operation. He purchased stolen credit cards from an undercover state trooper, forged identification documents and obtained cash advances on the cards from banks. The case involved four stolen credit card purchases. The first three transactions involved three or four credit cards with aggregate credit limits of $ 7,450 to $ 21,000 for each transaction. The final transaction included forty credit cards with an aggregate limit of over $ 200,000. Egemonye, 62 F.3d at 426. At sentencing, the defendant was sentenced based on a loss of $ 242,950. The defendant appealed, claiming that the final transaction was sentencing factor manipulation to increase his sentence. Id. at 427. The First Circuit upheld the sentence, concluding that no extraordinary misconduct took place despite the fact that the last transaction involved a sizeable jump, and finding "the sting operation involved no pressure whatever on the Egemonye, lasted for only four transactions, and garnered several other defendants." Id. at 428.
Following the rationale in Egemonye, there is no evidence that the undercover agent pressured Ms. Nolan-Cooper to engage in the money laundering, or influenced her to launder more money than she was ordinarily willing to launder. Indeed, from the first meeting with the undercover agent she was a willing participant in the money laundering scheme and readily acknowledged that it would involve a significant amount of money to be laundered over an extended period of time. Additionally, the government, had a legitimate law enforcement purpose in continuing the money laundering operation, i.e. identifying and rooting out more coconspirators. The Court concludes that this thirteen month investigation which involved the laundering of nearly $ 200,000 was neither extended nor expanded for improper purposes and, therefore, the government did not engage in conduct even approaching the "extraordinary misconduct" required to show sentence factor manipulation.
The Court finds that Ms. Nolan-Cooper used special skills in the offense and obstructed justice and, therefore, overrules the defendant's objections to the PSI report's recommendation for upward adjustments based on those grounds. The Court finds that Ms. Nolan-Cooper is not entitled to an additional downward adjustment of one level for acceptance of responsibility and, therefore, overrules the defendant's objection to the PSI report's failure to recommend such an adjustment.
Finally, the Court denies the defendant's motion for a downward departure, finding that the conduct of the government did not take this case out of the Guideline's heartland, and the government did not engage in sentencing factor manipulation.
Eduardo C. Robreno