In U.S. v. Malol, No. 05-10688 (Feb. 2, 2007), the Court affirmed part of the sentence and vacated part of it, for a defendant convicted of frauds arising out of his practice of increasing the moving costs for customers after giving them a lower initial estimate.
The Court rejected the argument that the prosecution improperly used a summary chart in evidence. The Court found that even if the summary chart was improperly admitted, any error was harmless because of the overwhelming victim testimony of the defendant’s practice of inflating moving costs.
The Court also rejected the challenge to the over $1 million loss calculation. The jury found that the fraud amount exceeded $1 million, beyond a reasonable doubt. The district court could therefore find that this amount was exceeded, by a preponderance of the evidence.
The Court, however, reversed the sentence enhancement based on the commission of a fraud in violation of an order, pursuant to USSG § 2B1.1(b)(7). The Court noted that the administrative body in question, the Federal Motor Carrier Safety Administration, never held a hearing regarding Malol’s conduct, and never adjudicated his conduct; it merely sent out a notice that Malol’s conduct might be illegal. It was therefore improper to impose a sentence enhancement because there was no final agency action.
