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United States v. Peters

United States District Court, N.D. Ohio, Eastern Division

November 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT D. PETERS, Defendant.

          MEMORANDUM OF OPINION AND ORDER ON LOSS AMOUNT

          JOHN R. ADAMS JUDGE

         I. Introduction

         On April 10, 2019, Defendant Robert D. Peters (“Peters”) pled guilty as to Count 1 of the Indictment, which charged Peters with Conspiracy to Pass or Utter Counterfeit Obligations or Securities, in violation of 18 U.S.C. §§ 371 and 472, from April 6, 2017 continuing through April 29, 2018. (Min. of Proceedings Apr. 10, 2019; Indictment 1-10, ECF No. 1. See also PSR ¶¶ 1-2, ECF No. 36.) On July 24, 2019, this Court conducted an initial sentencing hearing for Peters. (Initial Sentencing Hr'g Tr., ECF No. 52.)

         Prior to the hearing, Peters objected to the Presentence Investigation Report (“PSR”), which stated that $38, 400 was the total loss amount as a result of the conspiracy, all of which was attributable to Peters. (PSR ¶¶ 11-13, ECF No. 36. See also, Peters' Sentencing Mem., ECF No. 43.) Peters argued that only $5, 679.60 is the loss amount attributable to him given the time he was incarcerated during the timeline of the conspiracy as indicted. (Peters' Sentencing Mem. 1-6, ECF No. 43.)

         During the initial sentencing hearing, this Court heard oral arguments from counsel for each party and testimony from the government's witness, Special Agent Kevin Williamson. (See generally Initial Sentencing Hr'g Tr., ECF No. 52.) For the reasons set forth in this Memorandum, this Court finds that the government has met its burden of proof and, therefore, the loss amount attributable to Peters is $38, 400.

         II. Background

         On April 10, 2019, Peters pled guilty to Count 1 of the Indictment, which charged that from April 6, 2017 through April 29, 2018, “Allyn D. Bell, Robert D. Peters, and Tori T. Smith, did knowingly and intentionally combine, conspire, confederate, and agree together and with each other to commit one or more offenses against the United States of America, to wit: pass to employees at various commercial establishments, falsely made, forged, and counterfeited obligations of the United States, that is, Federal Reserve Notes . . ., which they then knew to be falsely made, forged, and counterfeited . . ..” (Indictment ¶ 1, ECF No. 1.) Count 1 of the Indictment further explains that Peters and his co-conspirators travelled to different cities in Ohio, Pennsylvania, and Michigan to purchase items from various retail stores that were small in size, but high in value, with counterfeit $100 bills. (Id. at ¶ 3.) Peters and his co-conspirators would then take the item purchased with counterfeit currency to a different location of the retail store than where it was purchased and return the item for genuine currency. (Id.)

         During part of the April 6, 2017 to April 29, 2018 timeframe of the conspiracy Peters was incarcerated. (See Peters' Sentencing Mem. 1-6, ECF No. 43; PSR ¶ 52, ECF No. 36.) According to the PSR, on September 12, 2017, Peters was sentenced to 180 days incarceration for forgery and was given credit for 77 days served. (PSR ¶ 52, ECF No. 36.) Therefore, Peters was incarcerated in or around June 27, 2017 through December 24, 2017.[1] (See id.) Thereafter, on April 29, 2018, Peters was discovered, again, to have counterfeit currency in his possession when he ran from police officers and a counterfeit $100 bill was located in his wallet, which he dropped while fleeing. (Initial Sentencing Hr'g Tr. 27:14-28:25, ECF No. 52.)

         Finally, on February 19, 2019 Peters was arrested for the underlying offense before this Court. (See Docket Entry, Feb. 19, 2019.) At the time the arrest warrant for Peters was executed, both Peters and one of his co-conspirators, Allyn D. Bell, were arrested while at Peters' home. (Initial Sentencing Hr'g Tr. 22:19-21, ECF No. 52.) At the time of the arrests, a search warrant was obtained, Peters' home was searched, and counterfeit currency, equipment to make counterfeit currency, and equipment to make counterfeit credit cards were all found within Peters' home - this included a counterfeit $100 bill which was located in the toilet. (Id. at 22:4-23:11.)

         The government calculated the total loss amount of the conspiracy from April 6, 2017 through April 29, 2018 as $38, 400. (PSR ¶¶ 11-13, ECF No. 36.) Special Agent Kevin Williamson (“Williamson”) testified as to how the government calculated the total loss amount. (See generally Initial Sentencing Hr'g Tr., ECF No. 52.) First, Williamson utilized police reports, video surveillance, and victim statements to prove that Peters and his co-conspirators made certain passes of counterfeit currency with specific serial numbers at various retail establishments. (Id. at 10:5-17.) The loss amount associated with all these proven passes of counterfeit currency by Peters and his co-conspirators was calculated as $23, 900. (Id. at 10:5-21.)

         In addition, the serial numbers of the counterfeit currency Peters and his co-conspirators passed were recorded. (Id. at 11:10-17.) The PSR explains how the additional $14, 500 in loss is attributed to Peters and his co-conspirators because of the known, recorded serial numbers. (PSR ¶ 13, ECF No. 36.) “For example, for one transaction, evidence may show that Peters passed 5 counterfeit $100 bills with the same serial number, but the investigation recovered only one of those physical bills. The Secret Service's system still shows, however, that four bills with the same serial number as the recovered bill were passed on the same day. It is therefore reasonable to infer that Peters passed those four bills along with the fifth recovered one and is therefore liable for that loss.” (Id.) Therefore, Williamson explained that with the known, recorded serial numbers passed by Peters and his co-conspirators, along with the proven passes of counterfeit currency by Peters and his co-conspirators, the total loss amount for the entire conspiracy between April 6, 2017 and April 29, 2018 was calculated as $38, 400. (Initial Sentencing Hr'g Tr. 11:18-23, ECF No. 52..) However, Williamson noted that this figure is conservative because not all of the counterfeit currency has been recovered. (Id. at 13:11-14:10.)

         In response to the calculated $38, 400 total loss amount, Peters argues that the loss amount attributable to him is only around $5, 000 because that is the amount that can be directly tied to Peters' personal activities while he was not incarcerated. (Id. at 24:3-10.) In contrast, the government argues that $38, 400 is the loss amount attributable to Peters because that entire amount is tied to the entire conspiracy, in which Peters was involved. (Id. at 24:11-14.)

         Therefore, the issue before this Court is which loss amount, that of Peters' personal activities only or that of the entire conspiracy, is attributable to Peters.

         III. ...


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