Wednesday, July 30th, 2008

In Search of Lost Time

United States v. Abiodun, No. 06-5335-cr (2d Cir. July 30, 2008) (Cardamone, Cabranes, Katzmann, CJJ)

Emmanuel Abiodun was one of a group of people who ran a large credit card and identity fraud scheme in which credit reports were illegally downloaded and used to obtain credit cards in the victims’ names. Abiodun himself purchased between 300 and 400 reports and, the district court found, was responsible for a loss of between $1.6 and 2.0 million.

The court also increased his offense level by six levels based on its finding that Abiodun’s conduct involved more than 250 victims. The court included in this number individuals who suffered no actual financial loss, but who spent time securing reimbursement from banks and credit card companies.

On appeal, the circuit agreed that this was appropriate. The fraud guideline defines a victim as anyone “who sustained any part of the actual loss” for which the defendant is accountable. But this can include monetary harm, or any other type of harm that is “readily measurable in money.” On appeal, Abiodun argued that under these definitions it was error for the court to include individuals whose identities were stolen but who were fully reimbursed for their financial losses.

The circuit disagreed. Fully reimbursed individuals can still be victims under this guideline if “as a practical matter,” they suffered “(1) an adverse effect (2) as a result of the defendant’s conduct that (3) can be measured in monetary terms.” Thus, the district court correctly concluded that, if someone whose credit information was stolen spent “an appreciable amount of time securing reimbursement,” this loss of time could be measured monetarily and thus that such a person would be a “victim.”

Despite this holding, which is in essence, an affirmance, the court vacated the sentence. The district court counted such “time losers” as victims, but did not add in the value of this time when calculating the overall loss amount. But the definition of “victim” is limited to persons whose loss is included in that total. Thus, on remand, the district court either has to (1) recalculate the loss amount to include the value of the time lost by these individuals or (2) keep the loss amount the same, exclude these people from the victim count, and determine whether Abiodun’s crime still affected more than 250 victims.


There are a couple of oddities about this decision. The first is that it could result in a higher sentence on remand, since the loss amount might go up. Usually when this is the case, the court offers the defendant the option of withdrawing his appeal instead of pursuing the remand, but it did not do so here. See, e.g., United States v. Harrington, 354 F.3d 178, 186 n.5 (2d Cir. 2004). The second is that the court also vacated the sentence of Abiodun’s co-defendant, even though there is nothing in the opinion to suggest that his case presented this same issue.

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