I’d like to think that Cedrick Stubblefield has Occupy Wall Street sympathies.
Regardless, the Sixth Circuit’s opinion in United States v. Stubblefield shows why – if you’re going to commit fraud and be prosecuted in federal court – it’s better to defraud several Wal-Marts than to hit a bunch of mom and pop stores.
Don’t Keep Your Drugs Near Evidence of Your Fraud
Mr. Stubblefield was being driven in a rental car near Cleveland, Ohio. The car was pulled over for speeding.
The officer’s backup had a drug detection dog. The dog detected drugs in the rental car.
While searching the car, the police happened upon an envelope containing: 10 false driver’s licenses with either Mr. Stubblefield’s photo or the photo of another gentleman in the car; 20 Chase bank checks payable to the names on the fake Texas licenses; and maps and driving directions to Wal-Mart stores in the greater Dayton and Columbus Ohio areas.
Later, the police searched a bit more diligently in their station and found another, similar envelope containing more fake licenses, checks, and maps of Wal-Marts in greater Cleveland.
Hello Cleveland, indeed.
How Many Wal-Marts Are There?
Mr. Stubblefield was charged with intent to commit aggravated identity theft and possessing five or more identification documents with an intent to commit identity theft.
The government wanted him to accept a sentencing guidelines enhancement for having between 10 and 50 victims of his crime under U.S.S.G. § 2B1.1(b)(2). The government’s theory was that these checks were bound for a number of Wal-Mart stores, and that each store was a separate victim.
Mr. Stubblefield pled guilty, preserving his ability to resist the victim enhancement.
The district court agreed with the government that each Wal-Mart is a separate victim for the fraud guidelines. The Sixth Circuit, however, agreed with Mr. Stubblefield.
The question is whether the Wal-Mart corporation is the victim – in which case there is one victim – or whether each individual store is a separate entity capable of separate victimization.
Section 2B1.1(b)(2) says that:
(Apply the greatest) If the offense-
(A) (i) involved 10 or more victims; or (ii) was committed through mass-marketing, increase by 2 levels;
(B) involved 50 or more victims, increase by 4 levels; or (C) involved 250 or more victims, increase by 6 levels.
This, of course, punts on what counts as a “victim”. Helpfully, Application Note 1 to the fraud guideline clears that up:
Application Note 1 to § 2B1.1 defines victim thus: “any person who sustained any part of the actual loss determined under subsection (b)(1) . . . . ‘Person’ includes individuals, corporations, companies, associations, firms, partnerships, societies, and joint stock companies.”
So, “victims” for the “number of victim enhancement, includes only the entities who suffered an actual loss – not a guidelines loss.
This is a departure from how a lot of the fraud guidelines works. If you try to defraud someone and are prosecuted in federal court, normally the guidelines looked at what you tried to do, not just what you succeeded in doing. But the § 2B1.1(b)(2) number of victims enhancement is a little more restrictive.
Under this understanding, the Sixth Circuit found that Wal-Mart suffers the whole loss:
The evidence adduced at sentencing in the present case establishes that although the individual Wal-Mart stores take an initial, temporary loss, the Wal-Mart corporation ultimately bears the loss from Stubblefield’s crimes. Probation Officer Allen Gold, the only person to testify at sentencing who had spoken to representatives of Wal-Mart, testified that the corporation “do[es] reimburse each store, but each store will first take the loss.” The PSR that Gold prepared similarly states that “[u]limately, due to accounting practices of the Wal-Mart Corporation and the corporate guarantee to individual stores that payroll checks will be covered, the Corporation reimburses the individual stores for their losses.” Because the evidence does not suggest that the reimbursement hinges on any conditions, the stores’ loss is necessarily temporary, which is another way of saying that reimbursement is automatic.3 Moreover, the judgment requires Stubblefield to pay his restitution to the corporation rather than the individual stores. These facts support the conclusion that only the corporation suffers an actual loss–i.e., the “pecuniary harm that resulted from the offense,” U.S.S.G. § 2B1.1 cmt. n.3(A)(i) (emphasis added). So the only victim is the corporation, and the district court erred in applying an enhancement based on the number of stores affected.
Happily for Mr. Stubblefield, ripping off a string of Wal-Marts is a lot easier on the guidelines than ripping off a string of non-chain stores.
So – if you want to be community-minded (and commit fraud) – shop local, defraud global.
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