US v. Mardirosian

Filing 920100414

Opinion

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var gAgent = navigator.userAgent.toLowerCase() var gWindows = ( (gAgent.indexOf( "win" ) != -1 ) || ( gAgent.indexOf( "16bit" ) != -1 ) ) var gIE = ( gAgent.indexOf( "msie" ) != -1 ) var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) ) var floatwnd = 0 var WPFootnote1 = 'The paintings were Bouilloire et Fruits by Paul Cézanne,\ Portrait d\'une Jeune Fille and Portrait d\'un Jeune Homme by Chaim\ Soutine, Maison Rouge by Maurice Utrillo, Flowers by Maurice de\ Vlaminck, and Woman Seated and Boy by Jean Jansem.\ ' var WPFootnote2 = 'The district court excluded from evidence any reference to\ the British lawsuit, but it allowed the jury to hear about the\ halting of the sale and unsealing of the affidavit.\ ' var WPFootnote3 = '  The district court dismissed the second count at trial for\ failure to state an offense, on the grounds that "foreign commerce"\ did not include commerce between two foreign countries. The\ parties do not appeal this ruling.\ ' var WPFootnote4 = 'We reject Mardirosian\'s argument, raised for the first time\ on appeal, that, in light of the court\'s invalidation of the 1999\ Agreement, 18 U.S.C. § 2315 did not provide fair warning that\ Mardirosian\'s conduct was illegal, as required by the Due Process\ Clause of the Fifth Amendment. The notion that a contract for an\ illegal purpose is void ab initio is by no means novel, nor is 18\ U.S.C. § 2315 ambiguous merely because it does not specifically\ characterize the property obtained through such an unlawful\ negotiation as "stolen." Due process does not require that\ criminal statutes delineate every conceivable type of conduct that\ could come within their purview. See United States v. Lanier, 520\ U.S. 259, 271 (1997) (due process requirements are not "designed to\ convert into a constitutional dilemma the practical difficulties in\ drawing criminal statutes both general enough to take into account\ a variety of human conduct and sufficiently specific to provide\ fair warning that certain kinds of conduct are prohibited"). \ ' var WPFootnote5 = 'We stress that there remains a simple way to bring an end to\ the unlawful possession of stolen property. Mardirosian need only\ have returned the six paintings to their owner. Had he done so,\ his crime would have ended, and the five-year statute of\ limitations would have begun to run. See 18 U.S.C. § 3282.\ ' var WPFootnote6 = 'Mardirosian objected specifically to the following\ instructions:\ \                    [T]he fifth thing the Government must also prove\ beyond a reasonable doubt is that Mr. Mardirosian knew\ that any paintings he possessed in Massachusetts had at\ some time previously been stolen. It would be sufficient\ for the Government to prove that Mr. Mardirosian knew\ that any painting he possessed had been stolen in about\ 1978. . . . \                    [T]he law does not permit a person to benefit from\ his own illegal conduct. Therefore, the 1999 contract\ would not provide Mr. Mardirosian with a defense to the\ charge against him. The question of whether Mr. Bakwin\ entered into the 1999 contract as a result of coercion or\ duress might be important in a private civil suit between\ Mr. Bakwin and Mr. Mardirosian, but it is not a question\ that makes a difference in this criminal prosecution of\ Mr. Mardirosian by the United States, nor does it make a\ difference whether or not Mr. Mardirosian honestly\ believed that in view of the 1999 contract, his conduct\ after March 8, 2002 violated Federal law. If the\ Government proves beyond a reasonable doubt the first\ five elements of the crime charged in Count 1 and it also\ proves that any possession of stolen paintings by Mr.\ Mardirosian was not for the purpose of exchanging them\ for a reward that had been offered or that he actually\ believed had been offered before he possessed them, the\ 1999 agreement involving Mr. Bakwin does not provide him\ with a valid defense to Count 1.\ ' var WPFootnote7 = 'Application Note 3(e) provides:\               Credits Against Loss. -- Loss shall be reduced by the               following:\               (i) The money returned, and the fair market value of the\ property returned and the services rendered, by the\ defendant or other persons acting jointly with the\ defendant, to the victim before the offense was detected. \ The time of detection of the offense is the earlier of\ (I) the time the offense was discovered by a victim or\ government agency; or (II) the time the defendant knew or\ reasonably should have known that the offense was\ detected or about to be detected by a victim or\ government agency. \               U.S.S.G. § 2B1.1 cmt. n. 3(e)(emphasis added).\ ' var WPFootnote8 = 'We find further support for this interpretation in the fact\ that other circuits, in describing the moment of detection under\ Application Note 3(e), have focused on the detection of the crime\ rather than on the discovery of the perpetrator\'s identity. See,\ e.g., United States v. Austin, 479 F.3d 363, 370 (5th Cir. 2007)\ (observing that an offense is detected under the Guidelines\ commentary when the government "discovers the fraud")(emphasis\ added); United States v. Mau, 45 F.3d 212, 216 (7th Cir. 1995)\ (defining the time to determine a loss in a check kiting scheme as\ the moment the loss is discovered) (emphasis added); United States\ v. Swanson, 360 F.3d 1155, 1169 (10th Cir. 2004) (pinpointing the\ date of detection as "the date of discovery of the fraud")(emphasis\ added).\ ' var WPFootnote9 = 'Mardirosian argues that our reading of Application Note 3(e)\ will provide a windfall to white-collar criminals who can conceal\ their crimes because they will have a longer window to claim\ credits for returning property to their victims than robbers or\ burglars whose crimes are detected immediately. While we do not\ dispute that this may be true, we see no problem with this result. \ A defendant\'s opportunities to mitigate his crime, just like the\ punishment itself, are the product of the crime he has chosen to\ commit.\ ' var WPFootnote10 = ' This concept is now found in Application Note 3(D)(i), which\ excludes from loss calculation "[i]nterest of any kind, finance\ charges, late fees, penalties, amounts based on an agreed-upon\ return or rate of return, or other similar costs."\ ' var WPFootnote11 = 'The Eleventh Circuit in Paley based its interpretation of \ Section 2S1.1 in large part on a 2001 revision that changed the\ relevant term for sentence calculation purposes from "the value of\ the funds" to "the value of the laundered funds." This insertion\ of the modifier "laundered," the court found, signified that the\ funds to be considered for sentencing purposes were "those that\ were actually laundered." Mardirosian does not make a similar\ textual argument with respect to Section 2B1.1, nor is one readily\ apparent. \ \ \ \ ' function WPShow( WPid, WPtext ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'visible'" ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" ); floatwnd.document.open( "text/html", "replace" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( " p { margin-top:0px; margin-bottom:1px; } \r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( WPtext ); floatwnd.document.write( 'Close'); floatwnd.document.write( "

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