United States v. Greg Carter

742 F.3d 440, 2014 WL 486184, 2014 U.S. App. LEXIS 2401
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 7, 2014
Docket12-10549
StatusPublished
Cited by13 cases

This text of 742 F.3d 440 (United States v. Greg Carter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Greg Carter, 742 F.3d 440, 2014 WL 486184, 2014 U.S. App. LEXIS 2401 (9th Cir. 2014).

Opinions

Per Curiam Opinion; Dissent by Judge ZOUHARY.

OPINION

PER CURIAM:

Defendant-Appellant Greg Carter (“Carter”) appeals from the district court’s partial denial of his “Motion to Clarify Conditions of Supervised Release and the Amount and Current Status of Restitution.” Carter argues he and his codefendants are not liable for the remaining restitution balance, after the credit of forfeited assets, because everyone at Carter’s sentencing hearing believed that the forfeited assets would satisfy the restitution obligation. We hold the district court had jurisdiction to enforce its restitution judgment and reverse the district court’s calculation of the amount due and owing.

[442]*442I. Background

A. Indictment and Conviction

In January 2004, a grand jury indicted Carter and codefendants Susan Carter (his then-wife) and Jaime Abarghoie (Susan Carter’s daughter) for their participation in a scheme involving the fraudulent issuance of airline passenger tickets. Between 2000 and 2003, Carter and his co-defendants gained unauthorized access to the airline ticket-writing authority of various travel agencies, then wrote international tickets at bogus face value prices allegedly discounted from the actual fares. Defendants pocketed the difference — over $1 million — and left the travel agencies and airlines to deal with the losses.

In October 2005, the grand jury returned a superseding indictment against Carter and his co-defendants, charging them with conspiracy to commit wire fraud, wire fraud, access device fraud, and money laundering.

The superseding indictment also included forfeiture allegations for the following property:

• $51,763.30 in a Bank of America account;
• $44,400.00 in a Bank of America safe deposit box;
• Real property at 3009 Beach View Court, Las Vegas, NV;
• Real property at 3317 Chesterbrook Court, Las Vegas, NV;
• 1996 Mercedes Benz;
• 1994 Rolls Royce;
• 2001 Ford Mustang;
• Contents of a metal container seized during the search of 3009 Beach View Court, including: $10,300.00 in cash; a check for $9,150.00 made payable to Susan Carter; and coins totaling $40.17; and
• various computer equipment.

In February 2006, Carter’s co-defendants pled guilty with written plea agreements. In March 2006, a jury convicted Carter on all counts.

B. Sentencing

In August 2006, the district court sentenced Carter to 70 months in prison, followed by 36 months of supervised release. The district court also ordered Carter and his codefendants to pay restitution in the amount of $505,781.01, applying joint and several liability. The district court determined that the loss calculation, for purposes of determining Carter’s offense level, was $1,484,841.40. The $505,781.01 restitution figure represented the estimated liquidated value of the forfeited assets, not the amount of loss incurred by the victims. Addressing Carter’s objection about the offense-level loss calculation, the district court noted:

[T]he government stipulation as to the restitution owed by Susan Carter [and others] is not an accurate measure of the loss caused by the criminal conduct. Rather and perhaps most obviously, the restitution reflects a pragmatic acceptance of the fact that the Carters had approximately $505,000 in assets that could be forfeited to pay restitution. The stipulation was, in fact, an agreement that Susan Carter would forfeit all of the assets listed in the forfeiture count, which effectively included all assets.

Carter’s presentence investigation report made the following restitution recommendation:

Restitution in this case is being addressed through the Superseding Indictment as Forfeiture Allegation One. The proceeds of the forfeiture will be dispersed to the airline companies pro rata. At this time, the total estimated value of [443]*443the forfeited items is determined to be $505,781.01. This amount will be requested as restitution, noting that the items listed in the forfeiture and the actual amounts garnered from these items is the actual restitution.

(emphasis added).

When pronouncing Carter’s sentence, the district court stated:

THE COURT: .... In terms of restitution, restitution of 505,781.01 will be a joint requirement, joint and several, and the forfeiture — the forfeiture has been approved by the Court, hasn’t it, Counsel?
[THE GOVERNMENT]: Your Honor, the Court has entered a preliminary forfeiture, that’s correct. We have the final order of forfeiture here.
THE COURT: And you have no objection to that, [defense counsel]? [DEFENSE COUNSEL]: No objection. THE COURT: And so restitution will be in the amount of $505,781.01.

Near the conclusion of Carter’s hearing, the district court summarized the sentence as follows:

I have imposed a 70 month custodial sentence, all of the counts to run concurrent, and have ordered restitution in the amount of $505,781.01 that are joint and several. That has been paid I understand by what has been taken by the government.

The same day as Carter’s sentencing, the district court entered a Final Order of Forfeiture, purportedly under both civil and criminal forfeiture statutes, citing both 18 U.S.C. §§ 981 and 982. In October 2006, two months after Carter’s sentencing hearing, the district court entered another order vesting all property rights in the forfeited assets to the United States. Nothing in the appellate record delineates the estimated value of non-cash forfeited items at the time the district court entered its Forfeiture Orders.

Carter filed a direct appeal, challenging, among other things, the district court’s finding that the amount of loss, for offense level purposes, exceeded $1.4 million. United States v. Carter, 262 Fed.Appx. 10, 11 (9th Cir.2007). This Court rejected that argument and others, affirming Carter’s conviction and sentence. Id. Carter did not challenge the amount of restitution ordered.

C. Revisiting Restitution

Carter completed his 70-month term of incarceration in April 2011. After beginning his 36-month term of supervised release, Probation informed Carter, to his apparent surprise, that his restitution obligation remained outstanding and that he needed to begin making payments. In November 2011, he filed a motion arguing the forfeited assets should have more than satisfied the restitution of $505,781.01. The Government conceded that post-sentence credits and payments were not up to date, and that after applying a credit of $427,082, from the cash and sale of assets, and payments of $12,743, from monies paid by Carter’s co-defendants, the remaining balance was actually $65,955.73.

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Cite This Page — Counsel Stack

Bluebook (online)
742 F.3d 440, 2014 WL 486184, 2014 U.S. App. LEXIS 2401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-greg-carter-ca9-2014.