United States v. Shmuckler

911 F. Supp. 2d 362, 2012 WL 6607026, 2012 U.S. Dist. LEXIS 178850
CourtDistrict Court, E.D. Virginia
DecidedDecember 17, 2012
DocketNo. 1:11cr344 (LMB)
StatusPublished
Cited by1 cases

This text of 911 F. Supp. 2d 362 (United States v. Shmuckler) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shmuckler, 911 F. Supp. 2d 362, 2012 WL 6607026, 2012 U.S. Dist. LEXIS 178850 (E.D. Va. 2012).

Opinion

MEMORANDUM OPINION

LEONIE M. BRINKEMA, District Judge.

The issue before the Court is the proper amount of restitution to be awarded to the victims of defendant Howard R. Shmuckler (“Shmuckler”), who pleaded guilty to six counts of wire fraud in violation of 18 U.S.C. § 1343 on April 10, 2012. The government argues that $1,848,279.00 is the appropriate amount; Shmuckler contends that the Sixth Amendment limits restitution to $68,970.00, the amount established by the facts alleged in the indictment, or in the alternative that the amount of restitution cannot be more than the amount of loss determined by the Court for purposes of calculating .the advisory Sentencing Guidelines range.

For the reasons that follow, the Court finds that the Sixth Amendment does not restrict the restitution award to $68,970.00, and that the government has produced sufficient documentary evidence to establish by a preponderance of the evidence that the proper amount of restitution should be $1,848,279.00.

[364]*364I. BACKGROUND

On July 21, 2011, Shmuckler was indicted on seven counts of wire fraud pursuant to 18 U.S.C. § 1343. Dkt. No. 1. The indictment alleged that, as the owner and operator of a purported mortgage rescue business called The Shmuckler Group (“TSG”), Shmuckler devised a scheme to knowingly defraud individuals who came to TSG seeking to modify their mortgages. Indictment ¶¶ 1-4. According to the indictment, Shmuckler misrepresented his credentials, by claiming to be a Virginia attorney when he was not licensed to practice in the Commonwealth, and his success rate, by wrongfully estimating that TSG succeeded in achieving mortgage modifications 97% of the time. Id. ¶¶ 4-18. These misrepresentations enabled TSG to secure clients who paid between $2,500.00 and $22,020.00 for Shmuckler’s services and “lull[ed] those victims into a false sense of complacency with respect to TSG’s execution of those services.” Id. ¶¶ 4-5, 9^11,-13-15. Shmuckler advised his clients to stop making their mortgage payments, but he did mot thereafter facilitate the loan modifications as promised. Id. ¶¶ 5, 9, 11, 13. In addition to the seven counts, each pertaining to a specific victim, the indictment contained a $3 million forfeiture notice. Id. at 7.

On August 11, 2011, the defendant’s motion to waive the Speedy Trial Act was granted over the government’s objection. Dkt. Nos. 12-13. Due to the quantum of discovery in the case, the defendant’s unopposed motion to continue the trial was also granted on February 10, 2012, and trial was set for April 18, 2012.1 Dkt. No. 21. On April 6, 2012, the defendant’s motion in limine to exclude evidence that TSG’s solicitations were targeted toward certain racial, ethnic, and socioeconomic groups was granted to the extent that such evidence could not be considered during the guilt phase of the trial. Dkt. No. 46. The Court did not restrict the government from raising this issue during sentencing. Id.

The government moved to dismiss Count III of the indictment on April 9, 2012 [Dkt. No. 47]; the next day, Shmuckler pleaded guilty without a plea agreement to the remaining six counts.2 During his plea colloquy, Shmuckler acknowledged that the written Statement of Facts he had signed was accurate and he agreed that its factual representations, which largely mirrored the allegations in the indictment, were true and accurate. See Statement of Facts [Dkt. No. 49]; Plea Hr’g Tr. [Dkt. No. 76] at 24:12-25:20.

At the June 25, 2012 sentencing hearing, the Court began by deciding the appropriate Sentencing Guidelines range. See Sentencing Hr’g Tr. [Dkt. No. 77] at 3:9-5:12. The Court found, and both parties agreed, that the base offense level was 7. Id. at 3:6-9. The first major dispute over the Guidelines calculations was the proper enhancement for amount of loss:

THE COURT: All right. Your first big argument is that the loss amount is excessive,' and the problem we have here is that there’s no exact science for figuring out the loss amount in this kind of a case. The Probation Office has calculated the loss amount as over $2.5 million. You’ve offered various alternative ap[365]*365proaches to how the loss amount was calculated.
Because there’s no exact science to be relatively confident in what is an accurate loss amount, I’m going to give the defendant the benefit of the doubt and reduce the loss amount to between 400,-000 but less than 1 million dollars, which means that the actual addition to the base offense level would be 14 points.

Id. at 3:9-21.3 The Court also found that enhancements were appropriate for sophisticated means, leadership role, abuse of a position of trust, and more than 250 victims. See id. at 3:22-4:15. These enhancements and a two-point deduction for acceptance of responsibility resulted in a final offense level of 31. Id. at 4:16-19. Because the defendant had a criminal history III, the advisory guideline range was calculated to be 135 to 168 months. Id. at 4:20-5:12.

During oral argument on sentencing, the government for the first time requested that the Court continue its decision on restitution:

One quick comment, Your Honor, with respect to restitution: Calculating restitution has been a very, very difficult process, as I hope the Court can appreciate. We have 865 clients who signed up for TSG’s services in the year or so that it was up and running, and we have made every effort to get as accurate a figure for each of them as we possibly can. Doing that, however, look a lot of, a lot of time.
We were optimistic that we would have a complete restitution list more than ten days before sentencing, but we have been unable to do that. In fact, as recently as this morning, the government received five more victim impact statements, so that the loss that we presented to the Court in our supplemental position on sentencing on Friday, which was roughly 1.8 million, is already outdated. We’ve received some more.
So this is a long way, Your Honor, of asking the Court to consider deferring the restitution decision until a later period of time, when we can make sure that we’ve gotten all of the additional victim impact statements, if any more come in, factored into the restitution order and then present that to the Court.

Id. at 8:4-24.

Numerous victims appeared at the sentencing hearing, many of whom also spoke. See id. at 14:9-34:6; see also id. at 15:3-5 (“I thought there would be about a half dozen total [victims who wished to allocute]. Having turned around for just the first time a moment ago, I see that the courtroom is full.”). Most of the victims who spoke at sentencing and who sent letters to the Court were minorities. See id. at 36:16-22. Several victims required the aid of an interpreter. See id. at 14:22-15:2 (statement from the interpreter that she had “about a list of seven” victims who needed her assistance).

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Cite This Page — Counsel Stack

Bluebook (online)
911 F. Supp. 2d 362, 2012 WL 6607026, 2012 U.S. Dist. LEXIS 178850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shmuckler-vaed-2012.