US v. Ingrid Levy

Filing 920090630

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4662

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. INGRID DINA LEVY, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:07-cr-00265-JCC-1)

Submitted:

April 7, 2009

Decided:

June 30, 2009

Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Nathan Lewin, Alyza D. Lewin, LEWIN & LEWIN, LLP, Washington, D.C., for Appellant. Dana J. Boente, Acting United States Attorney, Jay V. Prabhu, Assistant United States Attorney, Thomas S. Dougherty, Tyler G. Newby, UNITED STATES DEPARTMENT OF JUSTICE, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Ingrid Dina Levy was convicted by a jury of three

counts of mail fraud, in violation of 18 U.S.C. § 1341 (2006), and four counts of wire fraud, in violation of 18 U.S.C. § 1343 (2006). Levy was sentenced to forty-six months' imprisonment Levy appeals her

and ordered to pay $168,300.77 in restitution. convictions and sentence.

We affirm Levy's convictions, but

vacate the sentence and remand for resentencing.

I. Viewing the evidence in the light most favorable to the Government, see Glasser v. United States, 315 U.S. 60, 80 (1942), the facts can be summarized as follows: In 2004, Levy agreed to serve as the supplier for an online business selling wholesale women's fashions run by Ashley Foster. Pursuant to

their agreement, Foster would take orders and collect payments and Levy would send the merchandise directly to the customer. In December of 2004, Judson Burdon ordered a number of items from the website and tendered payment via wire transfer to

Foster.

Foster forwarded the payment to Levy, who never sent When Burdon complained to Foster, make misrepresentations to Burdon,

the merchandise to Burdon. Levy advised Foster to

including inventing the name of a supplier that did not exist.

2

As a result of incidents similar to this one, Foster became the target of harassment and complaints from customers in online fora and eventually shut down the website. Foster and

Levy then decided to start another online business, this time selling retail women's fashion clothing. Again, Levy was to be

the supplier of the merchandise and informed Foster that she would send the items directly to the customers. trial showed that this of if business also was and the a The evidence at failure due to of

customer

complaints Many,

non-receipt not all, of

partial-receipt customers

merchandise.

obtained

refunds from either their credit card companies or from Foster. As a result of her dealings with Levy, Foster suffered losses from these businesses. At and around this same time and in the years

following, Levy set up several online businesses of her own to sell women's fashion clothing. mailbox in another and state to In doing so, Levy set up a serve as the on address for her In

businesses

listed

fictitious

names

the

websites.

October 2005, Stacy Armstrong ordered a number of items from one of Levy's websites. never completed Armstrong tendered payment by check. Armstrong's number order of and instead Levy a

sent

significantly

smaller

non-conforming

goods

while

promising a refund for the undelivered portion of the order. Levy, however, never provided a refund to Armstrong. 3

Annamarie Levy's websites and

Siegler

also

placed payment

an

order

on

one

of

transferred

into

Levy's

account.

Siegler never received her merchandise, despite assurances by Levy that it had been sent. In retaliation, Siegler placed the

same order repeatedly on Levy's site, costing Levy a transaction fee each time. In response to this, Levy drafted a fraudulent

summons and complaint purporting to be official court documents filed in state court in California and sent them to Siegler. Levy used a fictitious law firm name that she previously had used in drafting letters to various online fora. In December 2005, Special Agent Ryman of the Federal Bureau of Investigation ("FBI") placed an order from Levy's site using an undercover identity. and Levy, using a fictitious Ryman tendered payment to Levy name, assured Ryman that the

merchandise had been shipped. that Ryman ordered. warrant warrant, to search and

Levy never sent any of the items

After this incident, FBI agents obtained a Levy's home. agent While executing the search Levy

Ryman

another

interviewed

Levy.

admitted to the agents that she knew what she had been doing was "criminal" and that the majority of the orders that were placed on her websites remained unfulfilled. At created by trial, Ryman and the Government introduced that three also charts been

summarizing

records

had

introduced.

The first was Government Exhibit 45, a bar graph 4

showing

a

breakdown

of

Foster's

income

and

losses

from

her

ventures with Levy.

Ryman testified that this exhibit was based

on Foster's bank records and Government Exhibit 46, records of the credit card charge-backs for customers who received refunds for non-receipt of merchandise. The second was Government

Exhibit 30, a chart listing the names and purported loss amounts of customers who had complained about Levy's businesses on an internet ("IC3"). website called the Internet Crime Complaint Center

The final chart was Government Exhibit 2, a bar graph

depicting the total amount of deposits into, and purchases of merchandise from, Levy's account. Ryman testified that he

prepared this chart by reviewing Levy's bank and credit card records that previously had been introduced into evidence. In addition, the Government introduced Exhibit 31, a collection of emails from Levy's home computer obtained during the search of her house. This exhibit contained emails from

disgruntled customers complaining about partial and non-receipt of merchandise, and Levy's responses to those customers. district court admitted each of these exhibits over The

Levy's

objections. The jury convicted Levy of all seven counts. At

sentencing, the Government produced a chart, again compiled by Ryman, listing eighty-two victims and $168,300.77 in losses.

Ryman testified that he generated this chart by first compiling 5

a list of victims from the IC3 website, then identifying the victims' email addresses from Levy's computer, and attempting to contact the victims to verify their complaints. Ryman admitted

that he was only able to speak with fifteen of these victims. Based on Ryman's of testimony, the the district that court found at by a

preponderance

evidence

there

were

least

eighty-two victims of Levy's crimes, who suffered $168,300.77 in losses. The under the court therefore Guidelines enhanced by four Levy's levels offense based level on the

Sentencing

number of victims and by ten levels based on the loss figure. See U.S. Sentencing Guidelines Manual ("USSG") § 2B1.1(b)(1)(F), (b)(2)(B) (2007). Category forty-six I, to the Because Levy's criminal history placed her in advisory Sentencing months' Guidelines imprisonment. range was After

fifty-seven

considering the 18 U.S.C. § 3553(a) (2006) factors, the district court sentenced Levy to forty-six months' imprisonment. The

district court also ordered Levy to pay restitution in the loss amount pursuant to 18 U.S.C. § 3663A (2006).

II. Levy first argues that the district court erred in admitting evidence. Government Exhibits 2, 30, 31, 45, and 46 into

This court reviews a district court's determination 6

of

the

admissibility States v.

of

evidence 418

for

abuse 411,

of

discretion. (4th Cir.

United 2005).

Hedgepeth,

F.3d

418-19

"An abuse of discretion occurs only when a trial court

has acted `arbitrarily' or `irrationally' in admitting evidence, when a court has failed to consider `judicially recognized

factors constraining its exercise' of discretion, or when it has relied on `erroneous factual or legal premises.'" Id. at 419

(quoting United States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990); James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993)). addition, evidence] "`[a]ny is error to in [the] admission error or exclusion In [of

subject

the

harmless

test.'"

United

States v. Loayza, 107 F.3d 257, 263 (4th Cir. 1997) (quoting United States v. Francisco, 35 F.3d 116, 118 (4th Cir. 1994)). Government Exhibits 2, 30, and 45 are summary charts and graphs. including Levy objects to their admission on several grounds, lack of advance notice, inaccuracy, and

relevance,

hearsay, and argues that these charts did not assist the jury and were unduly prejudicial. "Summary charts are admissible if Loayza, 107 F.3d

they aid the jury in ascertaining the truth."

at 264 (citing United States v. Johnson, 54 F.3d 1150, 1159 (4th Cir. 1995)). The district court should consider "[t]he

complexity and length of the case as well as the numbers of witnesses and exhibits" in determining admissibility. Id. In

addition, the court can dispel any prejudice to the defendant in 7

the admission of charts and summaries by giving the defendant the opportunity to cross-examine the witness who prepared the exhibits and giving a cautionary instruction to the jury. Id.

Applying these standards, we have reviewed the record and find no error in the admission of these charts and summaries. Levy Government also challenges 46 on the the court's that admission it of

Exhibit

grounds

contains

inadmissible hearsay and that she received it for the first time at trial. However, these records were not hearsay but were

admissible as business records under Fed. R. Evid. 803(6) and 902(11). In addition, Levy did not object to the lack of notice

in the district court and therefore waived appellate review of this claim. See Fed. R. Evid. 103; United States v. Parodi, 703

F.2d 768, 783 (4th Cir. 1983). Finally, Levy objects to the admission of Government Exhibit 31 on the ground that the emails from the customers were hearsay and that their admission was highly prejudicial and

violated the spirit of the Confrontation Clause of the Sixth Amendment and Crawford v. Washington, 541 U.S. 36 (2004).

However, these emails were not hearsay because they were not offered for the truth of the matter asserted. Rather, they were

offered to place the admissions by Levy in her response emails into context and to show Levy's intent, lack of mistake, and notice. The district court properly instructed the jury that 8

these emails were not offered for their truth. admission Clause. of this exhibit did not violate the

Therefore, the Confrontation

See id. at 59 n.9 (explaining that Confrontation Clause

does not bar use of testimonial statements for purposes other than establishing truth of the matter asserted).

III. Levy next contends that the district court

inadequately instructed the jury on the element of intent to defraud. "`The decision to give or not to give a jury United

instruction is reviewed for an abuse of discretion.'"

States v. Hurwitz, 459 F.3d 463, 474 (4th Cir. 2006) (quoting United States v. Moye, 454 F.3d 390, 398 (4th Cir. 2006) (en banc)). instruction Furthermore, to determine "`[this whether, court] taken review[s] as a a jury the

whole,

instruction fairly states the controlling law.'" Moye, 454 F.3d at 398). While Levy argues that the

Id. (quoting

district

court's

instruction to the jury was inadequate, Levy fails to specify in what way the instruction misstated the controlling law. Levy

has thus failed to demonstrate that the district court abused its discretion in instructing the jury on intent to defraud.

9

IV. Levy treated courts the review argues Sentencing a that the district as by of 586, court erroneously Appellate court for

Guidelines imposed an 128 abuse S. Ct.

mandatory. a district discretion 597

sentence applying

reasonableness, Gall v. United

standard. United In so

States,

(2007);

States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).

doing, the court "first examines the sentence for significant procedural improperly Guidelines errors," including: the "`failing to calculate treating the § (or the

calculating) as mandatory,

Guidelines to

range,

failing

consider

3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence . . . .'" Pauley, 511 F.3d at 473 (quoting Gall, 128 S. Ct. at 597). there are no procedural errors, the appellate court If then Gall,

considers the substantive reasonableness of the sentence. 128 S. Ct. at 597.

In sentencing Levy, the district court stated that it was "bound by these [S]entencing [G]uidelines, except to the extent that [it could] depart upwards or downwards in any given case" and expressed that "[it did not] feel that [it could] depart downwards in this case and [had] to be within the

[G]uideline range."

We agree that the district court treated

the Guidelines as mandatory and therefore vacate the sentence 10

and remand for resentencing. *

See Covington v. United States,

129 S. Ct. 1612 (2009) (remanding for resentencing in light of Nelson v. United States, 555 U.S. ___, 129 S. Ct. 890 (2009), because the district court treated Guidelines as mandatory).

V. Levy next contends that the district court erroneously increased unreliable the applicable advisory Guidelines Levy range based that on the

hearsay.

Specifically,

argues

Government failed to provide reliable evidence of the number of victims of Levy's scheme and the amount of loss suffered by those victims. This court reviews a district court's factual United

determination of the amount of loss for clear error. States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).

The court

need only make these determinations by a preponderance of the evidence and "need only make a reasonable estimate of the loss, given the available information." n.9 (2000)). Here, Ryman testified to his methods for determining the victims of Levy's crimes. Ryman testified that he consulted Id. (citing USSG § 2F1.1 cmt.

the victims listed on the IC3 website and confirmed their status

In so doing, we express no opinion on the reasonableness of the sentence imposed by the district court.

*

11

as customers by searching through the email addresses found on Levy's computer. We conclude that the district court made a

reasonable estimate of the loss and determination of the number of victims based on Ryman's testimony.

VI. Finally, Levy contends that the district court's order of restitution Act, was 18 unlawful U.S.C. because the Mandatory (2006), Victims does not

Restitution

§§ 3663A-3664

authorize the court to order a defendant to pay restitution to a person who was not a victim of the offense. Levy argues that

the eighty-two individuals to whom restitution was ordered were not victims within the Act. This court reviews a restitution order for abuse of discretion. 1994). United States v. Hoyle, 33 F.3d 415, 520 (4th Cir.

Under § 3663A(a) and (c), the district court must order

that the defendant make restitution to the victim of an offense committed by fraud. 3663A(a)(2). The term "victim" is defined in subsection

We conclude the district court did not err in

finding that the eighty-two individuals to whom restitution was ordered were "victims" as defined by the Act. Therefore, the

district court committed no error in ordering restitution to those victims.

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VII. In sum, we conclude that the district court committed no error in its conduct of the trial but erred in treating the Guidelines as mandatory in sentencing Levy. Accordingly, we

affirm Levy's convictions, but vacate the sentence and remand for resentencing. We also deny Levy's renewed motion for

release pending appeal.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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