* This appeal is successive to Appeal Nos. 08

‐ 2378, 08

‐ 3226, and 08

‐ 3238 and has been

submitted to this panel under Operating Procedure 6(b). After examining the briefs and the record,

we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs

and the record. See Fed. R. App. P. 34(a)(2). 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 5, 2010 *

Decided November 24, 2010

Before

FRANK H. EASTERBROOK, Chief Judge

DIANE P. WOOD, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

Nos. 09

‐ 3787 & 09

‐ 4100

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

GABRIEL TOADER and RAUL

BORLEA,

Defendants

‐ Appellants

. Appeals from the United States District

Court for the Northern District

of Illinois, Eastern Division.

No. 07

‐ cr

‐ 862

Matthew F. Kennelly,

Judge

.

O R D E R

Gabriel Toader and Raul Borlea were among several defendants charged in relation

to a fraud scheme. Toader pleaded guilty to one count of wire fraud, see 18 U.S.C. §§ NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1Nos. 09

‐ 3787 & 09

‐ 4100 Page 2

1343 and 2, and was sentenced to 96 months’ imprisonment. Borlea was tried by a jury

who found him not guilty as to one count of wire fraud, see 18 U.S.C. §§ 1343 and 2, but

guilty as to eight other counts of wire fraud and two counts of mail fraud, see 18 U.S.C.

§§ 1341, 1343 and 2. He was sentenced to 45 months’ imprisonment. They have

appealed. Toader contends that the district court’s findings were insufficient to hold

him accountable for Gabriel Constantin’s activities as relevant conduct under U.S.S.G. §

1B1.3. Borlea argues that the federal courts lack jurisdiction over him because he is a

Moorish National Citizen. We turn first to Toader’s appeal.

Gabriel Toader

United States v. Salem

, 597 F.3d 877 (7th Cir. 2010), addresses the appeals of three

defendants charged in another case arising out of the same overall fraud scheme

charged in this case and contains a general description of the fraud scheme. We refer

the reader to that opinion for background information about the scheme. See id. at 879

‐

80.

In this case, the district court found that Toader participated in the scheme for more

than two years. The district court described Toader’s role as receiving communications

from the foreign co

‐ schemers, collecting money from the domestic co

‐ schemers,

transmitting or wiring fraud proceeds to the foreign co

‐ schemers, and in some

instances, obtaining fake identification for others to use in the scheme. The district court

also found that Toader was aware of transactions at Western Union, was responsible for

monitoring the receipt of money and ensuring that the foreign schemers got what they

were entitled to under the scheme, and involved family members and others in the

scheme.

Toader challenges the sufficiency of the district court’s findings to support its

conclusion that he should be held accountable for the activities of co

‐ schemer Gabriel

Constantin as relevant conduct under U.S.S.G. § 1B1.3. Toader argued that he should be

held responsible for a loss less than $1,000,000 and for fewer than 250 victims. The

government asserted that he should be held accountable for the jointly undertaken

fraudulent conduct directly attributable to Constantin. The district court agreed with

the government and found that the loss amount was greater than $1,000,000, increasing

Toader’s offense level by sixteen, see U.S.S.G. § 2B1.1(b)(1)(I), and that the number of

victims was greater than 250, adding six more levels, see U.S.S.G. § 2B1.1(b)(2)(C). After

adding five levels based on its findings that a substantial part of the offense occurred

outside the United States, see U.S.S.G. § 2B1.1(b)(9)(B), and making various adjustments

under U.S.S.G. §§ 3B1.1(b) and 3E1.1, the resulting offense level was thirty

‐ one. GivenNos. 09

‐ 3787 & 09

‐ 4100 Page 3

an offense level of thirty

‐ one and a criminal history category of I, Toader’s guideline

range was 108 to 135 months’ imprisonment. The district court considered the

sentencing factors, including sentencing disparities, and imposed a below

‐ guidelines

sentence of 96 months.

We review the district court’s factual findings for clear error. United States v. Alaka

,

614 F.3d 368, 371 (7th Cir. 2010). A finding of fact is clearly erroneous “if, based upon

the entire record, ‘we are left with the definite and firm conviction that a mistake has

been committed.’” Id. (quoting United States v. Carani

, 492 F.3d 867, 875 (7th Cir. 2007)).

We addressed the need for a sentencing court to make specific findings on “key

elements of the relevant conduct analysis” in Salem

. We instructed that:

In applying U.S.S.G. § 1B1.3(a)(1)(B), the district court must make a

preliminary determination of the scope of the criminal activity the defendant

agreed to jointly undertake. Then the court must make a two

‐ part determination

of whether the conduct of others was both in furtherance of that joint criminal

activity and reasonably foreseeable to the defendant in connection with the joint

criminal activity.

597 F.3d at 886 (emphasis in Salem ) (citations omitted). Toader contends that the district

court did not make these findings, requiring a remand for re

‐ sentencing. The

government concedes that the court did not make a finding as to the scope of the jointly

undertaken criminal activity, that this was clear error, and that a limited remand is

appropriate.

However, the government asserts that the district court did find that Constantin’s

conduct was reasonably foreseeable to Toader. The government points to the following

findings:

There was

. . . some of the people who were going in and getting

money and then bringing it back, they may have worked for Mr. Constantin at

some point. They may have worked for Mr. Toader at some points. They may

have worked for both of them at various points. They may have worked for other

people, too.

I also think that there is a significant amount of evidence that Mr.

Toader was aware of Constantin’s participation in the scheme and that they were

both parts of the same overall enterprise.Nos. 09

‐ 3787 & 09

‐ 4100 Page 4

The district court cited some of the evidence of Toader’s involvement with Constantin:

common domestic co

‐ schemers who collected funds for both Toader and Constantin;

Toader was involved with Constantin in TDG Consulting, a sham company; and the

volume of phone calls between Toader and Constantin when considered along with the

other evidence “seem[s]

. . . to support the proposition that Mr. Toader was aware that

he was part of an enterprise that Mr. Constantin was also aware of.” The district court

noted the evidence of the connection between Toader and Constantin involving the

southern Florida aspect of the scheme. The court also referred to admissions by co

‐

defendant Mircea Alin Blaj in his plea agreement. The district court then described

Toader’s and Constantin’s connection as a non

‐ perfect hub and spokes situation:

although each was responsible for his own line of authority or chain of command,

“there was a lot of interaction along the spokes.” The court explained that it was

attributing the losses along one line of authority to an individual along another line of

authority “on the grounds that the defendant that I’m sentencing is

. . . aware of the

other person’s involvement [and] aware it’s all part of a single organized scheme

originated by other people[.]”

We cannot agree that the district court’s findings were sufficient with respect to

whether Constantin’s conduct was reasonably foreseeable to Toader for purposes of

U.S.S.G. § 1B1.3(a)(1)(B). A finding that Toader was aware of Constantin’s involvement

in the scheme is insufficient. Even if a defendant was aware that another person was

involved in one part of a broad scheme, if the defendant did not join that part, his

sentence cannot be based on it. See Salem

, 597 F.3d at 889; United States v. Fox

, 548 F.3d

523, 531

‐ 33 (7th Cir. 2008) (vacating and remanding where the district court considered

whether the coconspirator’s conduct was foreseeable to the defendant but did not

consider “whether that awareness arose out of [the defendant’s] joint criminal activity

with [the coconspirator].”). The district court found that “Mr. Toader was aware of

Constantin’s participation in the scheme and that they were both parts of the same

overall enterprise.” (emphasis added). But the court did not explicitly find that Toader

and Constantin joined the same part of the overall enterprise. Nor did it find that

Constantin’s conduct was in furtherance of the joint criminal activity and reasonably

foreseeable to Toader in connection with that activity.

Raul Borlea

Borlea argues that the federal courts lack subject matter jurisdiction over him and

that the laws he is charged with violating are inapplicable to him because he is a NativeNos. 09

‐ 3787 & 09

‐ 4100 Page 5

1 In a section of his brief entitled, “Statement of the Case,” Borlea comments on other aspects

of the case, challenging the sufficiency of the evidence to support his convictions and arguing that

certain testimony was not credible. However, the only argument he develops in a meaningful way

is his jurisdiction argument; he has thus forfeited any other argument. See United States v.

Blagojevich, 612 F.3d 558, 560 (7th Cir. 2010). Asiatic Moorish National Citizen. 1 This argument is frivolous. The district court has

original jurisdiction over “all offenses against the laws of the United States.” 18 U.S.C. §

3231. Borlea was charged with committing several offenses against the laws of the

United States. We have rejected a similar challenge to the district court’s jurisdiction by

a defendant asserting that he was a Moorish national and therefore need obey only

those laws mentioned in an ancient treaty between the United States and Morocco.

United States v. James

, 328 F.3d 953 (7th Cir. 2003). As stated in James : “Laws of the

United States apply to all persons within its borders. Even if James were not a citizen of

the United States

. . . he would be obliged to respect the laws of this nation.” Id. at 954.

Conclusion

For the foregoing reasons, we A FFIRM the district court’s judgment with respect to

Borlea and V ACATE Toader’s sentence and R EMAND for re

‐ sentencing in accordance with

this decision. On remand the district court must make findings with regard to the scope

of criminal activity Toader agreed to jointly undertake and whether Constantin’s

conduct was in furtherance of that criminal activity and reasonably foreseeable to

Toader in connection with that criminal activity.