In U.S. v. Timothy Day, No. 04-10551 (April 15, 2005), the Court (Marcus, Fay & Siler b.d.) affirmed the convictions and sentences of defendants convicted of mail fraud.
The Court rejected one defendant’s challenge to a USSG § 3A1.1 vulnerable victim upward sentence adjustment. The defendant claimed that she did not know that the victims of the fraud scheme were "vulnerable." The Court pointed out that an important part of the scheme was the "reloading process," in whcih individuals who had already been victimized were contacted again and defrauded into sending more money. The Court noted that the defendant had a role in compiling the list of those who had already donated to the sham organization, and concluded that the enhancement was well-founded.
The Court rejected another defendant’s argument that the conspiracy count should have severed from the underlying fraud counts, noting that the conspiracy charged a single conspiracy, which gave rise to the fraud counts charged in the indictment.
The Court also found no error in the district court’s initiative in getting a government witness to clarify confusing testimony.
The Court summarily rejected the argument that a defendant should have been allowed a resentencing after the district court did not impose a vulnerable victim enhancement on one co-defendant.
