USA v. Sandra White

Filing

OPINION and JUDGMENT filed : AFFIRMED. Decision for publication. Karen Nelson Moore (AUTHORING) and Eric L. Clay, Circuit Judges; Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky, sitting by designation.

Case: 15-2234

Document: 34-2

Filed: 01/13/2017

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0010p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

┐
│
│

>

v.
SANDRA MAXINE WHITE,
Defendant-Appellant.

│
│
│
│
│
┘

No. 15-2234

Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:13-cr-00222—Paul Lewis Maloney, District Judge.
Argued: December 1, 2016
Decided and Filed: January 13, 2017
Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge.*
_________________
COUNSEL
ARGUED: Matthew T. Nelson, WARNER, NORCROSS & JUDD LLP, Grand Rapids,
Michigan, for Appellant. Hagen W. Frank, UNITED STATES ATTORNEY’S OFFICE, Grand
Rapids, Michigan, for Appellee. ON BRIEF: Matthew T. Nelson, C. Ryan Grondzik,
WARNER, NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellant. Hagen W.
Frank, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

*

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.

1

Case: 15-2234
No. 15-2234

Document: 34-2

Filed: 01/13/2017

Page: 2
Page 2

United States v. White
_________________
OPINION
_________________

KAREN NELSON MOORE, Circuit Judge. Sandra White (“White”) and her husband
Joseph White operated a travel agency. In order to obtain low airline fares for the agency’s
clients, White routinely booked military-rate travel for her non-military-member clients. When
airlines became suspicious of White’s practices, and asked her for proof of her clients’ military
status, White manufactured fake military identification cards and sent them to the airlines as
alleged proof of her clients’ military credentials.

The airlines suspected that the military

identification cards were forged and contacted investigators. After a jury trial, White was
convicted of mail fraud and aggravated identity theft, and sentenced to a total of ninety-four
months of imprisonment.
White now challenges her conviction and sentence on the basis that (1) the district court
read an improper definition of the term “use” into the aggravated identity theft statute; (2) the
district court abused its discretion in refusing to admit certain evidence of White’s intention to
repay some of the airlines’ losses; and (3) the district court erred in calculating the amount of
White’s victims’ losses. For the reasons set forth below, we AFFIRM the judgment of the
district court.
I. FACTS AND PROCEDURE
Defendant Sandra White and her husband Joseph White owned and operated Corporate
Travel Consultants/Travel by Design, Inc. (“CTC”) from 1989 through 2011. R. 89 (Stipulation)
(Page ID #480). The agency’s accreditation was revoked in 2003 after audits conducted by
United Airlines determined that CTC generally and White specifically had engaged in fraudulent
ticketing schemes that cost the airline nearly $100,000 in airfares.

R. 112 (Presentence

Investigation Report (“PSR”)) (Page ID #572). White nonetheless continued her work as a travel
agent as a subcontractor for other accredited travel agencies throughout the country, enabling her
to maintain her practice of acquiring and selling airfares.

Id.

White continued to obtain

fraudulent ticket fares for her clients by providing false information about her clients’ ages,

Case: 15-2234

Document: 34-2

No. 15-2234

Filed: 01/13/2017

United States v. White

Page: 3
Page 3

possession of various discount certificates, and military status. Id. As a travel agent, White had
an opportunity to obtain additional revenue through commissions, service fees, and additional
bookings. R. 143 (Trial Tr. Vol. 4 at 735) (Page ID #1477). At trial, White’s victims testified
that she charged service fees and other airfare directly to her clients’ credit cards, sometimes for
persons other than those specific clients, and sometimes without their permission. R. 142 (Trial
Tr. Vol. 3) (Page ID #1264, 1343–44).
When travel agencies violate an airline’s fare policy in a manner that causes the airline
financial loss, the airline issues Agency Debit Memoranda (“ADM”) detailing the loss and
requiring payment to the airline. R. 112 (PSR) (Page ID #571). An operator of one of the travel
agencies with whom White subcontracted testified at trial that within two years of working with
White, the agency received more than $100,000 in ADMs based on airfare that White booked
with Delta and United Airlines. R. 144 (Trial Tr. Vol. 5 at 894–95, 909, 913–14) (Page ID
#1636–37, 1651, 1655–56). During one six-month period between January 1, 2010 and June 30,
2010, one of the travel agencies for which White was a subcontractor saw its percentage of sales
resulting in ADMs increase from “[n]ot even a quarter of one percent, less than a half of a
percent” to nearly fifteen percent. Id. at Page ID #1654–57.
The fraudulent scheme that is largely at issue in this case concerns White’s practice of
securing lower rates by falsely informing airlines that her clients were members of the United
States Armed Forces. R. 143 (Trial Tr. Vol. 4) (Page ID #1497–99); R. 144 (Trial Tr. Vol. 5)
(Page ID #1656–57). Because of the volume of White’s bookings, airlines and other travel
agencies became suspicious. When White was asked by her subcontracting partners to produce
proof that her customers qualified for military discounts, she created false Armed Forces
Identification (“AFID”) cards using customers’ real names and actual dates of birth. R. 143
(Trial Tr. Vol. 4) (Page ID #1500–1501).

The airlines determined that the cards White

manufactured were fraudulent and subsequently notified the United States Secret Service. R.
139 (Trial Tr. Vol. 1) (Page ID #923–28).
Sandra White was charged with wire fraud in a single-count Indictment on November 7,
2013. R. 1 (Indictment) (Page ID #1). On February 27, 2014, the Government filed a First
Superseding Indictment charging White with wire fraud and aggravated identity theft. R. 2 (First

Case: 15-2234
No. 15-2234

Document: 34-2

Filed: 01/13/2017

United States v. White

Page: 4
Page 4

Superseding Indictment) (Page ID #9). In addition, her husband, Joseph White, was charged.
The Government offered the Whites a deal wherein White would plead guilty to the wire fraud
count and Joseph White would accept a diversionary disposition. R. 31 (Plea Agreement) (Page
ID #77). Joseph White refused the agreement, and the Whites proceeded toward trial. Two
months before trial, White moved to dismiss Count Two, the aggravated identity theft count,
which the government opposed. R. 53 (Mot. to Dismiss) (Page ID #190); R. 56 (Resp. in Opp.)
(Page ID #215). The district court denied the motion. R. 148 (Mot. Hr’g) (Page ID #2160–61);
R. 63 (Order) (Page ID #242). White filed a motion for reconsideration immediately before trial,
R. 81 (Mot. for Reconsideration) (Page ID #453), and the district court again denied the motion
to dismiss Count Two. R. 91 (Order) (Page ID #484); R. 139 (Trial Tr. Vol. 1) (Page ID #743–
745).
During trial, White attempted to offer evidence about her repayment of some of the
airlines’ and travel agencies’ losses that resulted from her scheme. The district court permitted
White to examine witnesses about actual repayments that were made to victims; however, White
was not permitted to delve into loss-recoupment negotiations that took place long after White
was confronted by her victims. R. 143 (Trial Tr. Vol. 4) (Page ID #1530–31).
The jury found White guilty on both counts on June 2, 2015.
acquitted.

Joseph White was

On September 25, 2015, the court sentenced White to seventy months of

imprisonment on Count One and twenty-four months on Count Two, to be served consecutively.
R. 121 (Judgment) (Page ID #675). White filed a timely notice of appeal.
II. ANALYSIS
A. Standard of Review
Whether the district court properly construed the meaning of the word “uses” within the
ambit of 18 U.S.C. § 1028A is a question of statutory construction. We review issues of
statutory interpretation de novo. United States v. Miller, 734 F.3d 530, 539 (6th Cir. 2013). We
also review a district court’s denial of a motion to dismiss the indictment de novo. United States
v. Ali, 557 F.3d 715, 720 (6th Cir. 2009).

Case: 15-2234

Document: 34-2

No. 15-2234

Filed: 01/13/2017

United States v. White

Page: 5
Page 5

We review a district court’s evidentiary rulings for abuse of discretion. United States v.
Freeman, 730 F.3d 590, 595 (6th Cir. 2013). “An abuse of discretion occurs when a district
court relies on clearly erroneous findings of fact, improperly applies the law, or uses an
erroneous legal standard.” United States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005). “[W]e
will leave rulings about admissibility of evidence undisturbed unless we are left with the definite
and firm conviction that the [district] court . . . committed a clear error of judgment in the
conclusion it reached.” United States v. Wagner, 382 F.3d 598, 616 (6th Cir. 2004) (internal
quotation marks omitted).
“We review a district court’s calculation of the ‘amount of loss’ for clear error, but
consider the methodology behind it de novo.” United States v. Meda, 812 F.3d 502, 519 (6th
Cir. 2015). We have previously instructed district courts “to determine the amount of loss [under
U.S.S.G. § 2B1.1(b)(1)] by a preponderance of the evidence, and the district court’s findings are
not to be overturned unless they are clearly erroneous.” United States v. McCarty, 628 F.3d 284,
290 (6th Cir. 2010) (quoting United States v. Triana, 468 F.3d 308, 321 (6th Cir. 2006)). “In
order to challenge this calculation, [the defendant] must ‘carry the burden of demonstrating that
the court’s evaluation of the loss was not only inexact but outside the universe of acceptable
computations.’” United States v. Martinez, 588 F.3d 301, 326 (6th Cir. 2009) (quoting United
States v. Raithatha, 385 F.3d 1013, 1024 (6th Cir. 2004), vacated and remanded on other
grounds, 543 U.S. 1136 (2005)).
B. Defining “Use” Pursuant to 18 U.S.C. § 1028A
White first argues that the district court incorrectly applied Sixth Circuit precedent in
holding that “use” of a means identification under 18 U.S.C. § 1028A includes a situation where
a defendant purports to act on behalf of another individual by employing that individual’s means
of identification. Defendant White was found guilty of aggravated identity theft, which is
defined by 18 U.S.C. § 1028A(a)(1):
(1) In general.--Whoever, during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person shall, in addition to
the punishment provided for such felony, be sentenced to a term of imprisonment
of 2 years.

Case: 15-2234

Document: 34-2

No. 15-2234

Filed: 01/13/2017

United States v. White

Page: 6
Page 6

18 U.S.C. § 1028A. Congress enacted § 1028A in 2004 because at the time, “many identity
thieves receive[d] short terms of imprisonment or probation” and “after their release, many of
these thieves will go on to use false identities to commit much more serious crimes.” H.R. Rep.
No. 108–528, 2004 U.S.C.C.A.N. 779 (2004). The aggravated identity theft statute “is intended
to reduce the incidence of identity theft and fraud and address the most serious criminals by
providing stronger penalties for those who would commit such crimes in furtherance of other
more serious crimes.” Id. at 785.
White’s First Superseding Indictment alleged that she “did knowingly use, without lawful
authority, means of identification of other persons, to wit, the names of 27 persons for whom she
had previously obtained significantly reduced military fares by fraudulently representing that
they were members of the Armed Forces of the United States . . . .” R. 2 (First Superseding
Indictment at 7) (Page ID #15). The Government further alleged that “[White] used the noted
means of identification to manufacture fake Armed Forces Identification Cards, which she then
sent by means of interstate wire communications to Delta Airlines, Cain Travel, and The Travel
Agent Company in an attempt to justify reduced fares that she had previously obtained in the
course of committing wire fraud.” Id.
White argues that the district court failed to apply correctly two of our decisions: United
States v. Medlock, 792 F.3d 700 (6th Cir. 2015), and United States v. Miller, 734 F.3d 530 (6th
Cir. 2013). Although Miller and Medlock are instructive, we cannot conclude that they counsel
in favor of reversal.
In Miller, defendant David Miller was convicted by a jury of two counts of making false
statements to a bank and two counts of aggravated identify theft in violation of 18 U.S.C.
§ 1028A.

734 F.3d at 534.

Miller, like White, argued that the aggravated identity theft

conviction was improper because he did not “use” a means of identification pursuant to § 1028A.
Id. We agreed with Miller and reversed his aggravated identity theft convictions. Id. at 542.
Miller had received a loan from a bank for the purchase of land after pledging that land as
collateral. Id. at 534. As part of the closing process, Miller submitted to the bank a resolution
stating that all persons with an investment stake in the land had attended a recent meeting to
discuss the potential loan, and that at that meeting those individuals voted unanimously to allow

Case: 15-2234
No. 15-2234

Document: 34-2

Filed: 01/13/2017

United States v. White

Page: 7
Page 7

the property to be pledged as collateral for the loan. Id. at 535. Both statements were false. The
resolution also contained the handwritten names of all individuals with an investment stake in the
property, as written by Miller’s partner. Id.
The defendant’s argument in Miller was that “18 U.S.C. § 1028A does not criminalize
this conduct because he only lied about what [two of the investors whose names were written on
the resolution] did, but he did not ‘use’ their names or identities.” Id. at 539. Miller further
asserted that he did not “use” another person’s name “because he did not steal or possess their
identities, impersonate them or pass himself off as one of them, act on their behalf, or obtain
anything of value in one of their names.” Id. at 541. The government responded that “Miller
‘used’ their names to fraudulently obtain a loan from First Bank by misrepresenting that he had
the authority to act on behalf of those individuals.” Id. at 539.
In analyzing § 1028A, we concluded that the statute was ambiguous “[b]ecause the
parties’ competing interpretations of ‘uses’ demonstrate that it is not entirely clear whether
§ 1028A criminalizes Miller’s conduct.” Id. at 541. After concluding that legislative history
provided no guidance for how we should resolve the ambiguity in Miller’s case, and having been
confronted with two reasonable interpretations of the term “uses,” we applied the rule of lenity,
which “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected
to them.” Id. at 542 (quoting United States v. Beals, 698 F.3d 248, 273 (6th Cir. 2012)). In so
doing, we concluded that “as a matter of law, Miller did not ‘use’ a means of identification
within the meaning of § 1028A by signing a document in his own name which falsely stated that
Foster and Lipson gave him authority [to act on their behalf] . . . .” Miller, 734 F.3d at 542.
Specifically, we concluded that “[n]othing inherent in the term ‘uses,’ its placement in the text of
§ 1028A, or the statute’s legislative history clearly and definitely indicates that the term, as
applied to the names of persons, is broad enough to reach the mere act of saying that the persons
did something” when they in fact had not. Id. (emphasis added).
We applied our holding in Miller to a somewhat different set of facts in Medlock. There,
Mr. and Mrs. Medlock operated a non-emergency ambulance service (“MAS”) that transported
patients to kidney dialysis. Medlock, 792 F.3d 703. The couple’s transport company was later
reimbursed for those transports by Medicare. Id. Pursuant to United States Department of

Case: 15-2234
No. 15-2234

Document: 34-2

Filed: 01/13/2017

United States v. White

Page: 8
Page 8

Health and Human Services (“HHS”) guidelines, a non-emergency ambulance transport
company is reimbursed “only when such transport is medically necessary for bedridden
patients.”

Id.

In those circumstances, the ambulance company must have an Emergency

Medical Technician (“EMT”) accompany the passenger. Id. at 703–04. Additionally, “[t]he
ambulance company documents each trip with a certification of medical necessity (CMN),
signed by a doctor, and a ‘run sheet,’ which a Medicare contractor other than the ambulance
company reviews to determine whether Medicare should reimburse the company for the trip.”
Id. at 704 (footnote omitted). An investigation into MAS concluded that the company’s records
lacked some CMNs, and surveillance revealed “four patients walking, riding in the front seat,
being double-loaded in an ambulance (i.e., being driven two patients, rather than one, at a time),
being driven by single-staffed ambulances, or being transported by wheelchair (rather than
stretcher).” Id. Each of those transports had been billed as “single-passenger and ‘stretcher
required’ (or equivalent).” Id. Investigators also found at the couple’s home a number of forged
CMNs and run tickets. Id.
The government in Medlock argued “that the Medlocks ‘used’ the name and Medicare
Identification Numbers of Medicare beneficiaries when they ‘caused a claim to be submitted to
Medicare for reimbursement that contained’ such names and numbers ‘without lawful authority
to do so because the claim falsely stated that’ stretchers were required for transport.” Id. at 705.
Finding the Miller rationale “persuasive,” we concluded that the term “use” “must have a more
limited definition than the government suggests.” Medlock, 792 F.3d at 706. In comparing
Medlock to Miller, we noted that “the defendant in Miller lied about what his partners did and
the Medlocks lied about what they did . . . .” Id. (emphasis in original). In finding that the
Medlocks did not “use” the names of their patients in violation of § 1028A, we emphasized that
the Medlocks “did transport the specific beneficiaries whose names they entered on the forms;
they lied only about their own eligibility for reimbursement for the service.” Id. (emphasis in
original). While the Medlocks “misrepresented how and why the beneficiaries were transported,
. . . they did not use those beneficiaries’ identities to do so.” Id. at 707 (emphasis in original).
The addendum to our Medlock opinion is also instructive. Id. at 712. There, we affirmed Kathy
Medlock’s conviction for aggravated identity theft where she “forge[d] a physician’s signature
and thus us[ed] his identity to secure reimbursement fraudulently for unnecessary ambulance

Case: 15-2234
No. 15-2234
transports.”

Document: 34-2

Filed: 01/13/2017

United States v. White

Id.

Page: 9
Page 9

We concluded that “[o]ur rationale for reversing the convictions [on the

aggravated identity theft counts relating to the previously discussed falsely submitted Medicare
claims] does not apply” to the conviction for signature forging. Id.
In responding to our decisions in Miller and Medlock, the Government argues here that
“[v]iewed in a continuum, then, from (1) using names in a lie about what one did [Medlock], to
(2) using names in a lie about what others did [Miller], to (3) using names to manufacture fake
identification documents and then purporting to submit them on behalf of those persons [White],
the facts in this case are well within the reach of the statute as it has now twice been construed.”
Gov. Br. at 30. The Government asks that we focus not “on what White did with clients’ names
at the time she obtained economic value through fraud,” but “on what she did with their names
afterwards when she was attempting to avoid having to repay that value.” Id. at 31. Indeed,
Count Two of the First Superseding Indictment alleges that White “used the noted means of
identification to manufacture fake Armed Forces Identification Cards, which she then sent by
means of interstate wire communications to Delta Airlines, Cain Travel, and The Travel Agent
Company in an attempt to justify reduced fares that she had previously obtained” during the
commission of her wire fraud scheme. R. 2 (First Superseding Indictment at 7) (Page ID #15).
We conclude that White’s actions are distinguishable from both the Miller and Medlock
defendants, and that White’s actions in this case are most similar to Kathy Medlock’s affirmed
aggravated identity theft conviction for signature forging in the Medlock addendum. Both of
those cases were principally about defendants who lied about their own actions.

And,

importantly, the personal information used in both Miller and Medlock was memorialized in
documents that were submitted to other parties with the Miller and Medlock defendants’ names
and identities included on those documents. White did more than simply lie about whether her
clients were eligible for military discounts. Indeed, she did more than assert to the airlines that
her clients were eligible.

She took a significant additional step, and submitted what she

represented to be actual identification that the United States Military purportedly had issued for
her clients. When White’s scheme simply involved telling the airlines that her clients were
members of the military, her statements to the airlines were similar to the resolution submitted to
the bank in Miller and the inaccurate CMNs in Medlock because she was submitting false

Case: 15-2234
No. 15-2234

Document: 34-2

Filed: 01/13/2017

United States v. White

Page: 10
Page 10

information about others in her own name. The distinction in this case (and the similarity to
Kathy Medlock’s valid conviction under § 1028A for signature forging) arises from White’s
actions in creating false military identification cards and attempting to pass them off as her
clients’ own personal means of identification.
The parties do not dispute whether the manufactured military identification cards
constituted means of identification or whether they were possessed without lawful authority. We
note that “the phrase ‘without lawful authority’ in § 1028A is not limited to instances of theft,
but includes cases where the defendant obtained the permission of the person whose information
the defendant misused.” United States v. Lumbard, 706 F.3d 716, 725 (6th Cir. 2013). Further,
White’s knowledge that she was submitting to the airlines the identification information of her
clients satisfies the mens rea requirement of § 1028A. Flores-Figueroa v. United States, 556
U.S. 646, 657 (2009). We therefore conclude that White was properly convicted pursuant to 18
U.S.C. § 1028A because when she manufactured and submitted to the airlines the fraudulent
military identification cards, she “used,” without lawful authority, a means of identification of
another person during and in relation to the wire-fraud felony of which she was convicted.
C. Evidentiary Rulings on After-the-Fact Repayment Negotiations
White next argues that the district court abused its discretion by limiting her ability to
admit documents related to after-the-fact repayment negotiations with victims of her fraud. As
noted supra, we review evidentiary rulings for abuse of discretion. White, however, argues that
the district court was not ruling on evidentiary issues, but rather was ruling that a particular
defense was not available to White as a matter of law. Def. Br. at 25. White is incorrect. The
district court excluded some of the evidence of post-loss repayment negotiations on the ground
that the evidence was inadmissible pursuant to Federal Rules of Evidence 402 and 403. The
district court did, however, permit certain evidence of White’s attempts at repayment to proceed
to the jury. We therefore conclude that the district judge’s decision to limit evidence of afterthe-fact repayment negotiations must be reviewed for abuse of discretion.
The Government points to United States v. Carter, 483 F. App’x 70 (6th Cir. 2012), a
case upon which the district court relied, as the case most instructive on this point. Gov. Br. at

Case: 15-2234

Document: 34-2

No. 15-2234

Filed: 01/13/2017

United States v. White

Page: 11
Page 11

35; R. 146 (Trial Tr. Vol. 7) (Page ID #2007). In Carter, a defendant sought to offer testimony
from its corporate counsel that certain efforts were made to remedy and investigate apparent
fraud after a demand for repayment had been made. The district court in Carter excluded the
evidence, and we affirmed, stating:
A defendant’s intention to repay the victims of fraud is no defense.
Likewise, subsequent investigations, repayments, or settlement attempts shed no
light on whether a defendant had a previous intent to defraud. These efforts have
at best . . . small probative value for the purpose of showing lack of evil intent.
Defendant’s subsequent attempts to rectify the fraud are irrelevant to his
earlier intent or state of mind, and the district court was within its broad discretion
under Rule 403 to exclude that evidence.
Carter, 483 F. App’x at 75 (citations omitted). Three other circuits join the Sixth Circuit in
curtailing admission of evidence of post-accusation repayment. See United States v. Jimenez,
513 F.3d 62, 75 (3d Cir. 2008); United States v. Suba, 132 F.3d 662, 677 (11th Cir. 1998);
United States v. Sirang, 70 F.3d 588, 595 (11th Cir. 1995); United States v. Foshee, 578 F.2d
629, 632 (5th Cir. 1978).
We note that the trial judge did admit evidence regarding repayments that White actually
made. The district court did not, however, permit the admission of evidence of loss-recoupment
negotiations that transpired after White’s plan was uncovered. White sought to admit evidence
that, long after her fraudulent scheme was discovered, she attempted to repay some of her
victims for some of their losses. These negotiations between White and her victims transpired
only after White was confronted by the airlines, her victims, and law enforcement. The temporal
relationship between the fraudulent activity and the attempts at repayment is too attenuated to
warrant a reversal. The trial judge, having received full briefing on this issue, R. 94 (Def. Trial
Br.) (Page ID #489); R. 98 (Gov. Resp.) (Page ID #500), decided that some of the evidence of
repayment was inadmissible under both Carter and Federal Rule of Evidence 403, R. 146 (Trial
Tr. Vol. 7) (Page ID #2007); R. 145 (Trial Tr. Vol. 6) (Page ID #1837), and we conclude that he
did not abuse his discretion.

Case: 15-2234

Document: 34-2

No. 15-2234

Filed: 01/13/2017

Page: 12
Page 12

United States v. White

D. Calculating Loss Attributable to Defendant White
White’s final argument is that the district court was speculative and incorrect in
calculating the amount of loss the airlines suffered. The Probation Office calculated the loss to
White’s victims under U.S.S.G. § 2B1.1(b)(1)(H), which requires at least $400,000 but not more
than $1,000,000 in intended loss. R. 112 (PSR) (Page ID #577). The method for calculating loss
was adduced at trial from the testimony of various airline representatives. White argues that the
airlines’ testimony regarding their loss calculation, which the district court admitted at trial over
White’s repeated objections, was “subjective” and that it “significantly overestimated” the
amount of loss to the airlines. Def. Br. at 30. The Government, noting that the district court
correctly relied on the evidence presented at trial and distilled in the presentence investigation
report in accepting the loss calculation, argues that “White challenges a body of documentary
and testimonial evidence, provided by industry professionals with decades on the job, with
nothing more than a line of ineffective cross-examination that she has recycled into a meritless
appellate argument.” Gov. Br. at 40.
“We review a district court’s calculation of the ‘amount of loss’ for clear error, but
consider the methodology behind it de novo.” Meda, 812 F.3d at 519. “[T]he district court is to
determine the amount of loss [under U.S.S.G. § 2B1.1(b)(1)] by a preponderance of the
evidence, and the district court’s findings are not to be overturned unless they are clearly
erroneous.” United States v. Healy, 553 F. App’x 560, 564 (6th Cir. 2014) (quoting United
States v. McCarty, 628 F.3d 284, 290 (6th Cir. 2010)).

In demonstrating clear error, “a

defendant must show the calculation ‘was not only inexact but outside the universe of acceptable
computations.’” Id. (quoting United States v. Martinez, 588 F.3d 301, 326 (6th Cir. 2009)).
We cannot conclude from the record that the district court’s determination of loss in this
case was “outside the universe of acceptable computations,” or that the methodology used to
calculate loss was incorrect. Id. The trial record reveals that the airlines used standard ticketauditing practices to determine the difference between the fares White obtained fraudulently and
the next-cheapest fare possible. Several of the airline witnesses testified about the auditing
process during trial, and several audit records were admitted into evidence.

Case: 15-2234
No. 15-2234

Document: 34-2

Filed: 01/13/2017

United States v. White

Page: 13
Page 13

Prior to sentencing, White filed several objections to the PSR, and the government
responded. R. 115 (Def. Sent. Obj.) (Page ID #638); R. 116 (Gov. Resp.) (Page ID #654). In her
sentencing memorandum, White stated her belief that “[t]he elements of the loss calculation are
incorrect and overstated.” R. 115 at Page ID #645. At sentencing, the government represented
that “[a]s far as the guidelines go, meeting with [White’s counsel], there is no dispute at this
point as to the loss figures . . . . [White’s counsel] has looked over my filing, Docket Number
116, and agrees with the government’s calculations as far as loss goes.” R. 150 (Sent. Hr’g Tr. at
4) (Page ID #2203); R. 116 (Gov. Sent. Mem. at 7) (Page ID #660). The government then
specified the loss amount as $663,610. R. 150 (Sent. Hr’g Tr. at 5) (Page ID #2204). White’s
counsel then stated, “I agree on the loss number that we have come to, your Honor, in this sense:
Of course we have raised objections about the admissibility of the government’s evidence and, of
course, preserve those objections. But we have no objections or want to present no different
proofs on these points. . . . [W]e have come to an agreement on this loss number.” Id. at Page ID
#2205. The parties thus agreed that the total loss attributable to White for guidelines calculation
purposes was $663,610. R. 150 (Sent. Hr’g Tr. at 5–6) (Page ID #2204–05); R. 116 (Gov. Sent.
Mem.) (Page ID #660).
The record does not support a finding that the loss calculation offered by the government
and accepted by the district court was outside the universe of acceptable computations. Indeed,
the method used to calculate the loss was one that several airline industry witnesses agreed was
reasonable, and White did not present evidence that an alternate theory was preferable.
Moreover, White did not present evidence that her method would result in an amount below the
beginning of the range in U.S.S.G. § 2B1.1(b)(1)(H) of $400,000.

The district court’s

determination of the loss attributable to White was not clear error, and its method was
reasonable. We therefore affirm the district court’s conclusion regarding calculation of the loss.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the district court.