2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-8-2012 

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P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 12-1193

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 12

- 1193

________________ UNITED STATES OF AMERICA

v. IDALIS LOPEZ ,

Appellant

________________ Appeal from the United States Distr ict Court for the District of New Jersey (D.C. C rimina l Action No. 1

- 1 1

- c r - 0 0 41 2

- 00 1 ) District Judge: Honorable Joseph H. Rodriguez

________________ Submitted Under Third Circuit LAR 34.1(a)

November 1 , 2012 Before: SLOVITER, AMBRO , and BARRY , Circuit Judges

(Opinion filed: November 8, 2012 )

________________ OPINION

________________ AMBRO, Circuit Judge Idalis Lope z ple d guilty to bank fraud in violation of 18 U.S.C. § 1344. P ursuant to the Mandatory V ictims Restitution Act (―MVRA‖), 18 U.S.C. § 3663A , she was ordered to pay $43,000 in restitution. Lopez now appeals this amount. We affirm.2

Lopez was employed by Bank of America as a bank teller in Atlantic City, New Jersey. Th r ough this position, she befriended bank customer J.R. , a retired bachelor suffering from poor health. The two grew close as Lopez assisted J.R. in getting around and paying his bills, and they developed something akin to a father

- daughter relationship

. Lopez ultimately betraye d J.R. when she misappropriated thousands of dollars from his Bank of America account between July 2008 and May 2009

. Lopez maintains that she used th is money to pay expenses and that she always inten ded to pay it back.
Once J.R. became suspicious that Lopez was stealing from him , he made an inquiry with his bank. Lopez was subsequently interviewed on at least two separate occasions by agents from the Federal Bureau of Investigation (―F

. B

. I

. ‖). A t first, she denied any wrongdoing . Ho wever, at the sec ond interview she admitted to transferring
money fraudulently from J.R.‘s Bank of America ac count into her own. The Government has presented evidence that J.R.‘s account was reduced by $45,502.07 during the relevant period. 1 These reductions included $8 ,855.07 in automatic teller machine (―ATM‖) withdrawals , $15,300.00 in teller withdrawals , and $21,347.00 in electronic transfers. While Lopez admits full responsibility for the electronic transfers, she denie s liability for the ATM and teller withdrawals

. In a letter to the United States Probation Office, J.R. confirmed that Lopez had withdrawn ―approximately $43,000‖ from his Bank of America

accounts.

1 We note that the amounts reflected in the Presentence Report (―PSR‖) total $325 more than those contained in the record. PSR at ¶ 24. We assume that this was an unintentional mistake, and in any event it is ultimately irrelevant for the purposes of this appeal.3

Following a January 11, 2012 sentencing hearing, t he District Court sentenced Lopez to one day ‘ s impri sonment and three years‘ supervised release. She was also ordered to pay restitution in the amount of $43,000 under the MVRA. The Court issued a subsequent Order directing that the restitution funds be disbursed to J.R. Lopez appeals , and a rgues that th e District Court lacked sufficient evidence to conclude that she owed restitution with respect to the ATM and teller withdrawals

. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)

. We review the amount of a particular restitution award under the MVRA for abuse of discretion. United States v. Bryant , 655 F.3d 232, 253 (3d Cir. 2011) (citing United States v. Quillen , 335 F.3d 219, 221

– 22 (3d Cir. 2003) ). ― ̳To id entify such abuse, we must conclude that a challenged ruling rests on an error of law, a clearly erroneous finding of fact, or otherwise cannot be located within the range of permissible decisions.‘‖ United States v. Aumais , 656 F.3d 147, 151 (2d Cir. 201 1) (quoting United
States v. Pearson , 570 F.3d 480, 486 (2d Cir. 2009)). To repea t, Lopez admits responsibility for the $21,3 47 of fraud ulent electronic transfers, but disclaims liab ility for the balance of the $43,000 withdrawn through ATM and teller transactions

. 2 In particular, she asserts that some additional evidence was

2 Lopez represents that she has been steadfast in this posit ion, yet we note that the PSR calls this assertion into question. It states that Lopez ―denied that she used the ATM money for herself and said that the counter withdraws [sic] conducted at the bank were for J.R.‘s benefit and used to pay his monthly bill s.‖ PSR at ¶ 22. Further, Lopez apparently admitted to ―taking a few hundred dollars from these type of transactions for herself.‖ Id.4

necessary

— such as withdrawal slips, witness testimony or surveillance video s

— to implicate her for the additional funds. The MVRA directs that defendants convicted of certain offe nses ―make restitution to the victim of the offense or, if the vi ctim is deceased, to the victim‘ s estate.‖ 18 U.S.C. § 3663A(a)(1). The Act applies to offenses against property, id. at § 3663A(c)(1)(A)(ii), which includes Lopez‘s conviction for bank fra ud. ―In each order of restitution, the court
shall order restitution to each victim in the full amount of each vic tim‘ s losses as determined by the court and without consideration of the economic circumstances of the defendant.‖ Id. at § 3664(f)(1)(A). The MVRA places the burden on the Government to demonstrate the amount of a loss and directs that ―[a]ny dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.‖ Id. at § 3664(e).
To meet this burden , t he Government presented a spreadsheet totaling the disbursements from J.R.‘s account at $45,502.07 and the unsworn letter by J.R. stating that his losses were ―approximately $43,000.‖ We hold that it was not clearly erroneous for the Distri ct Court to determine that this production was adequate in this case

. T he Court‘s determination survives s crutiny for clear error primarily because it

was not ―completely devoid of a credible evidentiary basis ‖ and bore a ― rational relationship to th e supporting data.‖ United States v. Vitillo , 490 F.3d 314, 330 (3d Cir.
200 7) (quoting United States v. Haut , 107 F.3d 213, 218 (3d Cir. 1997))

. All that is required in the restitution context is a ―modicum of reliable evidence

. ‖ United States v. Salas

- Fernandez , 620 F.3d 45, 48 (1st Cir. 2010) (quoting United States v. Vaknin , 1125

F.3d 579, 587 (1st Cir. 1997)). Here, the victim‘ s letter was largely corroborated by the account activity, and it was not irrational for the District Court to afford it sub stantial weight in the absence of c redible countervailing evidence

. See United States v. Smith , 528 F.3d 423, 425 (5th Cir. 2008) (holding employee ‘s interview statement of loss was sufficient where the defendant ―did not introduce any rebuttal evidence o r elicit any live testimony at the sentencing hearing suggesting that the victim‘s calculation of the total loss was incorrect ‖); United States v. Prochner , 417 F.3d 54, 66 (1st Cir. 2005) (― In the absence of reb uttal evidence beyond defendant‘ s self

- servi ng words, we cannot say the court clearly erred in accepting the PSR ‘ s calculation of the restitution amount. ‖). Furthermore, a victim impact statement can be sufficient to establish the amount of a loss

. See , e.g. , United States v. Rochester , 898 F.2d 97 1, 982 (5th Cir. 1990) ( holding an affidavit was a sufficient factual basis for an order of restitution); U nited States v. Bales , 813 F.2d 1289, 1298 (4th Cir. 1987) ( determining that a victim impact statement made by a bank security officer provided ―adeq uate proof of the loss‖). The U.S. Sentencing Guidelines endorse this approach, commenting that ― affidavits of witnesses may be adequate under many circumstances ‖ in order to resolv e sentencing disputes. U.S.S.G. § 6A1.3 cmt. Moreover , the procedure in the MVRA requires a district court to ―order the probation officer to obtain and inc lude in its presentence report

. . . information sufficient for the court to exercise its discretion in fashioning a restitution order.‖ 18 U.S.C. § 3664(a). Insofar as t his report shall include ― a complete accounting of the losses to each victim ,‖ id. , the probation officer is required

— where practica ble

— t o notice the identified victims and provide each with an affidavit form as to6

their specific losses subject to restitut ion, id. at § 3664(d)(2)(B), (A)(vi). We see no reason that J.R.‘s letter should be disallowed as the equivalent of a victim impact
statement, especially since the author was subject to criminal liability for ―any materially false, fictitious, or fraudule nt statement or representation‖ contained within it . 18 U.S.C. § 1001(a). 3 As such, it was an adequate basis for the District Court‘s decision , and we affirm its restitution order

.

3 Section 1001(a) provides that ― whoever, in any matter within the jurisdiction of the executive, legislative, or j udicial branch of the Government of the United S tates, knowingly and willfully

. . . makes any materially false, fictitious, or fraudulent statement or representatio n . . . shall be fined under this title , imprisoned not more than 5 years

. . . or both. ‖ 18 U.S.C. § 1001(a)(2).