# United Stat es Court of Appeals For the First C ircuit

No. 01-2224 UNITED STATES OF AMERICA, Appellee,

v. CESAR ACOSTA, a/k/a NELSON BARRERA,

a/k/a PEDRO LOZADA, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District Judge ]

Before Lynch Circuit Judge , Campbell and Bownes, Senior Circuit Judges .

Jonathan R. Saxe , Assistant Federal Public Defend er, w ith whom Owen S. Walker , Federal Public Defender, was on brief for appellant. Jean B. Weld , Ass istant U.S. Attorney, with whom Thomas P. Colantuono , U.S. Attorney, was on brief for appellee.

____________________ August 30, 2002

____________________-2- BOWNES, Senior Circuit Judge . Defendant-appellant Ce sar Acosta pled guilty to a one-count indictment charging h i m with use and attempted use of one or more unauthorized access devices in violation of 18 U.S.C. §§ 1029(a)(2) and (b)(1). In determining the offense level, the di strict court calculated total loss in excess of $20,000, sentencing Acosta to ten months imprisonment and three years of supervised release. In calculating restitution, the court considered suppressed evidence that it had excluded from the loss calculation. Acosta appeals both the loss amount, with its resulting offense level, and restitution award. We AFFIRM . I. BACKGROUND

A. Facts On October 2, 2000, Acosta used an American Express

ca rdin the name of Nelson Barrera to purchase three $250 g if t cards from a J.C. Penney s tore in Na shua, New Hampshire. Store security officer M ark Kidd witnessed the purchase, followed Acosta into the parking lot, and observed him enter the Sears store. Acosta’s purchase aroused Kidd’s suspicions because the store had recently experienc ed l osses arising from multiple gift cardpurchases through counterfeit credit cards. At the time he observedAcosta, Kidd was unaware that the defendant was using a fraudulent card. Sears security videotaped Acosta as his card1 The record sugg ests, but is not entirely clear, that Acosta

was driving out of the garage. -3- was denied when he attempted to purchase similar gift certificates. Kidd then observed Acosta enter a car, which, it developed, was registered to Acosta’s girlfriend, Delva Castanos. Security Officer Kidd contacted American Express and learned that Nelson Barrera was not a valid American Express account holder.

On October 14, 2000, Acosta purchased two more $250 gi ft certificates from a Target store in Nashua, New Hampshire , using a MasterCard a lso in the name of Nelson Barrera. Eleven days later, investigators from the Nashua Police Department and Secret Service went to the apartment of Acosta’s girlfriend Delva Castanos. Castanos identified the man in the Sears videotape as Acosta and consented to a search of her apartment and vehicle.

About the same time, Officer Karen Becotte of the Nashua Police Department stopped Acosta as he was driving Castanos’s car in the parking garage of the building in which she hadan apartment. 1 Acosta showed her a Ne w Hampshire driver’s license in the name of Pedro Lozada. Becotte falsely informed Acosta that his vehicle was suspected of involvement in a hitand-run accident, and Acosta acco mpan ied her to the police station in Castanos’s car.-4- In an interview at the police station, Acosta a dmit ted to the use of a number of aliases and stolen credit cards. He said he had obtained the cards from an individual he knew as "Fat John." He also indicated that Castanos's apartment contained evidence including it ems p urchased with these cards, receipts,

an dadditional fraudulent credit cards. Acosta accompanie d investigators to the apartment, showed them the evidence, and providedthem with s even teen credit cards in several different

names. Prior to Acosta’s interrogation, Officer Kidd also learnedof fraudulent credit card charges at a J.C. Penney store in Concord, New Hampshire, on February 21 and 22, 2000. The s e charges, on a card issued to Rafael Vil a, co nsisted of four $250 gift card purc hases and a $124.98 merchandise purchase, totaling $1 ,124.98. The government linked Acosta to these transacti on s through his use of an American Express card to fraudulently purchase gift cards at a J.C. Penney in Salem, New Hamps hire, on January 10, 2000. Later, an individual using the name Joseph T rimpin redeemed the J.C. Penney gift cards purchased by both2 Investigators also learned of various other unauthorized

MasterCardand Ameri can Express charges that Acosta does not dispute on appeal. -5- Vila and Acosta at a store in Miami, Florida. 2 Th rough Trimpin’s actions, the government linked Acosta to the Vila transactions.

B. Procedural History On November 9, 2000, Ac osta was indicted on one count of possession of, with in ten t to defraud, fifteen or more counterfeit or unauthorized access devi ce s (credit cards), in violation of 18 U.S.C. § 1029(a)(3). Aco sta filed a motion to suppress, arguing that he had been illegally arrested, questioned absent Miranda warnings, and questioned after he had requested an attorney. The district court granted the motion, suppressing all of Acosta’s statements and all evidence derived therefrom, including a number of credit cards and receipts found at Castanos’s apartment. After this, the district court granted the government’s motion to dismiss the in dictment. On March 15, 2001, the government reindicted A cost a on one count of fraudulentlyusing and attempting to "use one or more unauthorizedaccess devices . . . including, but not limited to, American Express Card # 371388014444020 , to fraudulently obtain property and other items of [sic] with an aggregate value of more than one thousand dollars" between Jan uary 1, 2000 and-6-

October 25, 2000, in violation of 18 U.S.C. §§ 1029(a)(2) and (b)(1). Acosta filed another motion to suppress, which the di strict court dismissed as moot based on the governmen t’ s representations that it would not rely on any evidence covered by the earlier suppression order to prove the charge in the second indictment. The distric t c ourt also dismissed as moot Acosta’s motion to dismiss or, in the alternative, for a bill of particulars because "the government has represented that t he indictment’s reference to ' othe r access devices' refers to those credit cards identified in its Objection to Defendant’s Motion to Dismiss . . . and that its evidence will be limited to the access devices identified in the indictment and in its objection." The government represented in this motion that "[n]one of the information [in the second indictm ent] is subject to the suppression decision" and that it would not attempt to use the suppressed evidence without the court’s permission.

Acosta pled g uilty to this new indictment and signed a binding plea agreement stipulating that th e amount of loss from his charged conduct did not exceed $40,000.

The government also filed a sentencing memoran dum with attac hments in support of its sentencing positions. This report incorporated the results of a Secret Service inquiry into the use of American Express card number 371388014444020, which found that-7-

the card had been legitimately issued to Olgamarina De Tunez of Miami, Florida. The memo report contained a list of seventy-six fraudulent char ges on this credit card. Three entries reflected the October 2 transactions that Officer Kidd had witnessed at the J.C. Penney store in Concord, New Hampshire. Other charges includedtransactions at Henri Bendel, a busi ness i n New York City, on September 7, 2000; K-Mart in North Miami, Florida, and SamGoody in Salem, New Hampshire, all on September 14, 2000; Sears Roebuck in Manchester, New Hampshire, o n Se ptember 15, 2000; Scoop East in New York City and Lenscrafters and Sears Roebuck in Nashua, New Hampshire, all on September 24, 2000; as well a s my riad other transactions at New Hampshire and Massachusetts businesse s. The fraudulent charges to this account, an account known to investigators prior to their obt aini ng the suppressed evidence on October 25, 2000, totaled $17,243.69.

At sentencing, the district court ruled that the suppressedevidence could not be u sed to calculate offense level because the police had acted "egregious[ly]" in obtaining it. The court attributed the purchases made by Vila to Acosta and includedthem to calculate total loss. The court included the $1,124.98 in purchases by Vila, $17,243.69 in Am eric an Express Cardpurchases, $1,498.99 from Acosta’s fraudulent use of a-8-

MasterCard, and $259.96 from Acosta’s purchases at Sears to calculate total loss for Acosta’s guideline range. The resulting total, $20,127.62, yielded a total offense level of ten with a guideline sentencing range (GSR) of six to twelve months. Applying a criminal history category of I, the court sentenced Acosta to ten months imp ris onment and three years of supervised release. It also ordered restitution of $37,756.30, an amount that included the suppressed transactions. Without any defense objection as to accuracy, the court ado pted this restitution figure from the government’s August 23, 2001, letter to the Probation Office, which referred to affidavits of loss provided by the credit card companies. II. DISCUSSION

Acosta appeals the district court’s calculations of lo ss, along with its resulting offense level, and restituti on . On loss, he contests both the $17,243.69 American Express figure, arguing it should be $750.00, and the $1,124.98 fig ure, c laiming

no part of it should b e attrib uted to him. He contends that his sentence should be based on a loss fi gure of less than $5,000, resulting in an offense lev el of six, and a GSR of zero to six months. He also contests the restitution amount, arguing that the district court should not have considered the supp ressed transactions. We reject both arguments.-9- A. Loss Calculation Acosta argues that the district court er r ed in

c alcul ating his offense level by including unsuppressed credit cardcharges that the government did not pro ve Aco sta personally made. We revie w the district court’s findings of fact for clear

error. United States v. Brewster , 1 F.3d 51, 54 (1st Cir. 1993). This Court grants great deference to a district court’s calculation of the amount of loss for sentencing purposes:

Calculating the amount of loss for purposes of the sentencing guidelines i s more an art than a sci ence . . . . [A] party dissatisfied with the sentencing court's quantification of the amount of los s in a particular case must go a long way to demonstrate that the finding is clearly erroneous. UnitedStates v. Rostoff , 53 F.3d 398, 407 (1st Cir. 1995) (citations omitted). The gover nment must prove the amount of loss under U.S.S.G. § 2F1.1 by a preponderance of the evidence. UnitedStates v. Vaknin , 112 F.3d 579, 582-83 (1st Cir. 1997); United States v. Keifer , 198 F.3d 798, 800 (10th Cir. 1999). The sentencin g m ust be based on information bearing "sufficient indicia of reli ability to support its probable accuracy." U.S.S.G. § 6A1.3(a), p.s. (2001).

Acos ta argues that the district court and governmen t

were merely speculating that he was the only person with access to the unauthorized American Express card number 371388014444020.3 The Miami charge was ultimately excludedfro m the loss

calculation. -10- He points out that because the card was not a stolen card, but rather a card manufactured fraudule ntl y using an illegallyobtainedcard number, the likelihood was very low that a person wouldgo to the trouble of fraudulently obtaining a credit card number only to produce just one fake card and then take that card fromFlorida to New Engl and to sel l it. Further, Acosta points out that when faced with evidence that the same credit card number was used on the same day at a K-Mart in North Miami, Florida and at Sam Goody in Salem, New Hampshire, the government explainedthe potential problem by saying that the Miami use was erroneously classified as fraudulent and was in fact a legitimate tran sact ion. 3 Acosta argues that it is possible that other uses were similarly classified as fraudulent by mistake.

Acosta also highlights the two instances where a fraudule nt card w as used in New York and New Hampshire on the

same date to further suggest that another person was using the

same account number, and points out that no evidence was offered to refute this possibility. While conceding that it was theoretically pos sible that the New York purchases were made by telephone or that he traveled to both states on the sa me day, Acosta argues that these scenarios are highly unlikely and the-11-

government’s evide nce l inking him to these purchases is insufficient.

Accordingly, Acosta argues, he should be held responsible only for the t hre e of the seventy-six uses of American Express Card number 371388014444020 that occurr ed on October 2, 2000, at J.C. Penney in Nash ua, New H ampshire. In contrast, the government argued, and the court found, that all

uses of this card, totaling $17,243.69, were attribu tabl e to Acosta. At the sent en cing hearing, the district court judge concludedthat the go vernment had met its burden under the preponderance of the evidence standard:

I find that the government has established by a preponderance of the evidence that the $17,243.69 of attributable losses is correct. I’msatisfied that there’s no evidence that there were multiple cards with the same number. There’s certainly some questionable charges here, but there are myriad explanations as to how that could happen. . . . [C]ertainly it’s not inconceivable at all, in fact it’s very plausible, that the defendant could easily have m ade phone calls to these New York Stores and ordered whatever was ordered. You don’t have to b e personally there. It could be phone calls. It could be whatever. He hadthe card in his possession. He was in the area. There’s no evidence that convinces me or satisfies me that there’s a real plausibilityof another duplicate card out ther e othe r than the original card, so I-12- think the government’s met its burden of proof with respect to that number. Excluding the suppressed evid ence to calculate loss for sentencing purposes, the court eliminated $2,831.31 and adopted the $17,243.69 figure as charg es to American Express card number 371388014444020. This excluded the Miami, Florida, charge.

Indeed, most of the charges attributed to Acosta occurredin a tight geographi cal area - New Hampshire and Massachusetts - and many were gift cards. The court concluded that the preponderance of the evidence demonstrated Acosta likely made the purchases. Further, of the seventy-six transactions chargedto Am er ican Express card number 371388014444020, only three were made in New York, which is outside the tight geographical area. The district court conclude d th at Acosta couldhave made these charges himself, likely over the phone or in person.

Considering the argument that the purchases made on the cardissued to Vila should not be attributed to Acosta, the district court recognized that the question was a "close" one but determinedthat the government had met its burden, establishing "bya preponderance of the evidence . . . that [the] charge made by Mr. Vila, independently [of the] suppressed evidence, was made4 The district court explained:

I think it wouldcertainly be demonstrable that Mr. Kidd concluded, and certainly the Court would conclude, that once it’s established that Barerra [si c] i s Acosta and Barrera has purchasedgift certificates with a fraudulent card, andthe same modus operandi was used virtually contemporaneously and the gift certificates were sent for redemption to the same person at the same place in the same state, virtually contemporaneously, for cashing in, it’s certainly reasonable to draw the inference then that the persons are the same people operating under different names; that is Mr. Acosta. -13- by Mr. Ac osta." 4 The district court included this amount in the calculation of loss.

Given the high level of deference we accord to a trial court’s calculation of loss for sentencing purposes and the judge’s reasoned explanations on both figures, we see no clear error in the district court’s loss calculation.

B. Restitution Acosta argues that the district court erre d in using the suppressed evidence to calculate restitution. We review this claim of legal error de novo. United States v. Collins , 209 F.3d 1, 2 (1st Cir. 1999); United States v. Neal , 36 F.3d 1190, 1199 (1st Cir. 1994); United States v. Savoi e , 985 F.2d 612, 618 (1st Cir. 1993).5 Nevertheless, this rule has no t been met with universal

acclaim. Raposa , 84 F.3d at 505 (citing United States v. Jewe l , 947 F.2d 224, 238-40 (7th Cir. 1991) (Easterbrook, J., concurring); UnitedStates v. McCrory , 930 F.2d 63, 70-72 (D.C. Cir . 1991); Wayne R. LaFave, 1 Search and Seizure § 1.6, at 40-41 (2d ed. Supp. 1995)).

6 The only other circuit that has not yet addressedthis issue after the passage of th e Sentencing Guidelines reached the same conclusion as the other Circuits in a pre-Guideline case. United States v. Lee , 540 F.2d 1205, 1211 (4th Cir. 1976) (noting tha t deterrent effect of extending the exclusionary rule to sentencing "would be so minimal as to be insignificant").

-14- 1. Use of Suppressed Evidence This Circuit has yet to decide whether a court may use evidence suppre ssed u nder the Fourth Amendment in the context of Sentencing Guidelines proceedings. United States v. Raposa , 84 F.3d 502, 503 (1st Cir. 1996) (addressing but declining to decide the issue). We have noted, however, that all the cour ts that have addressed this issue have held that "there is no blanket prohibition on the consideration of illegally seized evidence for the purposes of making the find ings required under the Guidelines." 5 Id . at 504. Indeed, ten other circuits have ruled that in most circumst an ces, the Fourth Amendment exclusionary rule does not ba r the introduction of suppressed evidence during sentencing proceedings. 6 United States v. Ryan , 236 F.3d 1268, 1271-72 (10th Cir. 2001) (citin g Unit ed States v. Brimah , 214-15-

F.3d 854, 857-59 & n.4 (7th Cir. 2000) (holding exclusionary rule at s ent encing should not bar introduction of evidence seized in violation of Fourth Amendment, but leaving open question of whether the rule applies when police intentionally act illegally to enhance defendant's sentence); United States v. Tauil-Hernandez , 88 F.3d 576, 581 (8th Cir. 1996) (holding the exclusionary rule does not apply at sentencing); United States v. Kim , 25 F.3d 1426, 1435 & n.8 (9th Cir. 1994) (admitting evidence fromillegal searc h a nd seizure at sentencing, but leaving open the ques tion of whether the rule applies when police intentionallyact illegal ly to enhance defendant's sentence or hadan "undue incentive" to so act); United States v. Montoya-Ortiz , 7 F.3d 1171, 1181 & n.10 (5th Cir. 1993) (holding exclusionaryrule is generally inapplicable to sentencing proceedings, but suggesting that illegally seized e vide nce could be excluded if it was seized for the sole pu rpos e of enhancing defendant's sentence); United States v. Jenkins , 4 F.3d 1338, 1344-45 (6th Cir. 1993) (permitting the use o f i llegally seized evidence after finding no indication that evidence was obtained to enhance defendant's sen tence); United States v. Tejada , 956 F.2d1256, 1263 (2d Cir. 1992) ("Absent a showing that officers obtainedevidence expressly to enhance a sentence, a district judge may not refuse to consider relevant evidence at sentencing,-16-

even if t hat e vidence has been seized in violation of the Fourth Amendment."); United States v. Lynch , 934 F.2d 1226, 1236-37 & n.15 (11th Cir. 199 1) (admitting illegally obtained evidence and reserving question of whether suppression would be necessary if illegal search was done wit h pu rpose of increasing defendant's sentence); McCrory , 930 F.2 d 63, 69 (D.C. Cir. 1991) (same); UnitedStates v. Torres , 926 F.2d 321, 325 (3d Cir. 1991) (s ame)). Nine of these circuits have added or left open t h e possibilitythat the exclusionary rule will still apply if there is a n indi cation that the police violated the defendant’s Fourth Amendment rights with the intent to secure an increased sentence. Ryan , 236 F.3d at 1272; Brimah , 214 F.3d at 858 n.4; Kim , 25 F.3d at 1435 n.9; Montoya-Ortiz , 7 F.3d at 1181 n. 10; J enkins , 4 F.3d

a t 1345; Tejada , 956 F.2d at 1263; Torres , 926 F.2dat 325 ; Lynch , 934 F.2d at 1237 n.15; McCrory , 930 F.2d at 69.

These other circuits have carefully reasoned that, inter alia, the deterrent effect of the exclusionary rule does not outweigh the detrimental effects of excluding reliable evidence on the court’s ability to meet its goal of proper sentencing. E.g. , Tej ada , 956 F.2d at 1262 (concluding that allow i ng illegally obtained evidence to be considered at sentencing would not provide greater incentives for police to violate the Fourth Amendment); Lynch , 934 F.2d at 1236-37. They7 18 U.S.C. § 3661 provides, "No limitation shall be placed on

the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." The district court’s discr etio n is not unlimitedin scope, however. Brimah , 214 F.3d at 856 (citing U.S.S.G. §§ 5H1.1-1.6, 5H1.10, which list factors including, inter alia, age, education, and race, that are not relevant in sentencing determinations).

-17- have also recognized that the sentencing court needs to have the fullest information availabl e to fashion an appropriate remedy andthat the Se ntenci ng Guidelines allow the sentencing court to consider, without limitation, any information concerning the defendant’s background, cha racte r, or conduct. E.g. , McCrory , 930 F.2d at 68; 18 U.S.C. § 3661 (2000); 7 see also United States

v. Ro bins , 978 F.2d 881, 891 (5th Cir. 1992) (noting that "[i]t is a fundamental principle of sentencing that a district court mayconduct an inq uir y broad in scope, largely unlimited either as to the kind of information it may consider, or the source from which such information may come" (citing United States v. Campbell , 684 F.2d 141, 152 (D.C. Cir. 1982)).

While never having spoken directly on this issue, the Supreme Court has recognized the exclusionary rule as

a judicially created remedy designed to safeguardFourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. Despite its broad deterrent8 We note that the ev ide nce suppressed by the district court

includedboth credit cards and receipts seized in violation of Acosta’s Fourth Amendment rights and statements investigators obtai nedfrom Acosta in violation of his Fifth Amendment rights . The dispute before us for restitution purposes c oncern s only the suppressed credit card receipts. -18- purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. United States v. Calandra , 414 U.S. 338, 348 (1974) (weighing the deterrent effect of the exclusionary r ule on police misconduct against the potential benefit of extending the rule to grand jury proceedings).

It is clear that in sentencing, consideration of evi de nce suppressed under the Fourth Amendment is "consistent with the caselaw on the exclusionary rule and follows the wellestablished practice of receiving evidence relevant to sentencing froma broad spe ctrum of sources." Torres , 926 F.2d at 325. Given the great weight o f t he precedent and following the unanimous, reasoned approach of our sister circuits, we hold that th e exc lusionary rule does not bar the use of evidence seized in violation of a defendan t’s Fo urth Amendment rights in sentencing. 8 We leave ope n the question of whether the exclusionary rule would bar the use of evidence when police intentionallyact in violation of th e Fourth Amendment in order-19-

to increase a defendant’s sen tenc e. Therefore, the district court was not required to exclude the suppressed evidence in the context of sentencing in this case, even though it chose to do so in calculating the loss. This is not a case where the officers

a ctedw ith intent to enhance Acosta’s sentence. The district court found no such intent andne ither side disputes this conclusion. Determining that the district court could properly have considered the suppre ssed evidence in Acosta’s sentencing proce edin gs, we next examine whether the restitution order was otherwise valid.

2. Legal Requirements of a Restitution Order The Victim and Witness Protection Act (VWPA) authorizes a district court to order "in addition to or . . . in lieu of any other penalty authorized by law, that th e de fendant make restitution to any victim" of the offense. 18 U.S. C. § 3663(a). The purpose behind the statute is to "insure that the wrongdoer make good[], to the deg ree possible, the harm he has caused to the victim." Vaknin , 112 F.3d at 582 (citation and internal quo tations omitted) (alteration in original). The Supreme Cour t has held that this statute limits restitution awards to "the loss causedby the specific conduct th at is the basis of the offense of conviction." Hugheyv. United States , 495 U.S. 411, 413 (1990) . In addition, where the criminal conduct includes "an-20-

offense that involves as an e lem ent a scheme, conspiracy, or pattern of criminal activity," a victim is defined as "any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern." 18 U.S.C. § 3663(a)(2) (2000). In such cases, the district court may order restitution without regard to whether the conduct that harmed the victim was conduct underlying the offense of conviction. E.g. , United States v. Hensley , 91 F.3d 274, 277 (1st Cir. 1996).

It is undisputed that r esti tution is part of a sentence. See , e.g. , United States v. Wallen , 953 F.2d 3, 4 (1st Cir. 1991) (referri ng to restitution imposed by the court as "part of [ the defendant’s] sentence"); 18 U.S.C. § 3663(a)(1)(A) ("The court, when sentencing a defendant . . . may order . . . that the defendant make rest itution" (emphasis added)). Thus, under the VWPA and Hughey , the suppressed evidence in this case maybe included in the rest itution award only if (1) the offense involveda scheme, conspiracy, or pattern of criminal activity;

or (2) the evidence represen ts co nduct that was the basis of the offense of conviction. We address each issue in turn.

a. Scheme or Conspiracy Under 18 U.S.C. § 3663(a)(2), any conduct that is in the co urse o f the scheme, conspiracy, or pattern may be consideredin calcu lati ng restitution. Thus, if this case-21-

involveda scheme, conspiracy, or pattern of criminal activity, the district court could properly include the suppressed evidence in the restitution order regardless of whether it was conduct of conviction.

It is clear from the record that the offense with which Acosta was charged was not one involving a scheme, conspiracy, or patte rn of criminal activity. Acosta pled guilty to "knowingly andwith intent to defraud traffic[king] in or us[ing] one or

more unauthorized access devises duri ng any one-year period, and by s uch conduct obtain[ing] anything of value aggregating $1,000

or more during that period." 18 U.S.C. § 1029(a)(2). It is clear that this offense does not include as an element a scheme, conspiracy, or pattern of criminal activity. United States v. Blake , 81 F.3d 498, 506 (4th Cir. 1996) (stating that the offense of fraudulent use of unauthorized access devices in viola tion of 18 U.S.C. § 1029(a)(2) does not "include as an element a scheme, conspiracy, or pattern of criminal activity").

b. Conduct of Conviction We now turn to the que sti on of whether the suppressed credit cards represented conduct t hat wa s the basis of the offense of conviction. Surprisingly, none of the proceedings below considered whether this evidence was conduct of conviction. Rather, this evide nce was treated as "relevant conduct"9 In the Presentence Report (PSR), the suppressed transactions

are listed under the heading "O ffense Conduct," along with a notation that the evidence was suppressed. The PSR refers to the suppressedtransactions as "rel evant conduct to the offense of convicti on. " In the Addendum to the Presentence Report, the Probation Office stated that the suppressed transactions were "part of the same course of conduct to the offense of conviction." The government referred to the suppressed evidence seized from Castanos’s apartment as "relevant conduct" in both its sentencing memor andumand its letter to the Probation Office listing th e restitution amounts requested. The district court adopted this letter as an exhibit and used the amoun t s in it to order restitution. The Presentence Report also referred to these items as relevant conduct. -22- throughout. 9 Th e distinction between relevant conduct and conduct underlying the offense of conviction is an important one. Unless the offense involves as an element a s cheme, conspiracy,

or pattern of criminal activity, relevant conduct may not be taken into account for calculation of restitution; only conduct of conviction may be considered. United States v. Benjamin , 30 F.3d196, 198 & n.1 (1st Cir. 1994). Nevertheless, the responsibility to bring this issue to the court’s attention restedwith the defendant. Because Acosta failed to raise the issue below, he has forfeited it; we therefore review the court’s

use of the suppressed evidence in calculating restitution for plain error only . United States v. Olano , 507 U.S. 725, 731-32 (1993). Establishing plain error requires a four-part showing: "that there was error; that it was plain; that the error affected the defendant's substantial rights; and that the er ror adversely-23-

impactedthe fairness, integrity, or public reput e of judicial proc eedings." United States v. Saxena , 229 F.3d 1, 5 (1st Cir. 2000). We see no plain error here.

Acosta argues that in light of the references to the suppressedtransactions as relevant conduct below, and the fact that the government’s proffer at the change of plea hearing includedonly the unsuppressed evidence, the ev iden ce does not support the argument that the suppressed credit cards represented conduct of conviction. He further contends t hat because the district court declined to use the suppressed evidence in calculating the offense level as a due process matter because the10 In excluding the suppressed ev idence from the loss

calculation, the district court reasoned:

I think I'm satisfiedthat, given the totality of the circumstances, the fact th at the violation o f the defendant's constitutional rights was egregious, th at the suppressed evidence as a matter of due process should not be usedto enhance his sentence under the applicable Sentencing Guidelines. I don't find that the police officers had an intent to enhance t he sentence. . . . However, the viola ti ons are egregious, and I think the purposes un der lying the exclusionary rule are well served . . . where we have e gregious violations andwhere the evidence, having been suppressedin one case, is attempted to be used in a subsequent case to enhance the punishment.

11 At least in the scheme context, oth er circuits have determinedthe full amount of restitution authorizedby statute by "look[ing] to the scope of the indictment, which in turn defines the scope of the criminal scheme for restitution purposes." United States v. Ross , 279 F.3d 600, 609 (8th Cir. 2002) (internal citations and quotations omitted) (alteration in original); United States v. Ramirez , 196 F.3d 895, 900 (8th Cir. 1999) (noting that other circuits agree in the criminal scheme context, the indictment defines the s cope o f the scheme for restitution purposes (citing UnitedStates v. Henoud , 81 F.3d 484, 488 (4th Cir. 1996) and cases cited)); United States v. Jackson , 155 F.3d 942, 949-50 (8th Cir. 1998); UnitedStates v. Turino , 978 F.2d315, 319 (7th Cir. 1992). -24- violation of his rights was " egr egious," it should likewise not have used the evidence to calculate restitution. 10

The government counters that the district court could have found that the suppressed transactions were conduct underlying the offense to which Acosta pled guilty. The indictment to which Acosta pled guilty was very bro ad, 11 charging12 Congress responded to Hughe y b y expanding the scope of the

VWPAto include as victims those harmed by an offense that involves a scheme, conspiracy, or pattern of criminal activity as an element. 18 U.S.C. § 3663(a)(2). -25- himwith using and attempting to use "one or more unauthorized

access devices" during a ten-month period an d obta ining value of at least $1,000 from this conduct. It specifically noted that this conduct included, but was "not limited to," American Express cardnumber 371388014444020. The gov ernm ent points out that charg ing the use of more than one credit card to obtain the statutory jurisdictional amount of $1,000 is common practice.

Further, the government argues, Acosta’s reliance on Hughey , 495 U.S. 411 (1990), to contend that the loss associated with the suppressed evidence is not co nduct of conviction, is misplaced. In Hughey , the defendant pl ed gu ilty to one count of

a multi-count indictment for using stolen credit cards. Id. at 413. The Supreme Court reversed the district court’s restitution order because it had inc lude d the use of other credit cards to which the defendant had not pled guilty. Id. at 422. 1 2 Here, in contrast, Acosta pled guilty to one charge of using one or more cards during a ten-month period. The government argues that this charge included all possible credit cards connected to him during this time frame. From discovery, Acosta was aware that the government would introduce proof o f his other use of cards. The-26-

government argues that although it agreed not to introduce the suppressed evidence, at sentencing, the district court could have considered that evidence conduct of conviction.

We reject Acosta’s arguments and find no plain error in the district court’s use of the suppressed evidence in th e restitution calculation. We d o n ot equate the district court’s refusal to use the evidence in the loss calculation with a determination that the suppressed transactions were not part of the offense of conviction.

At the sentencing hearing, the district court expressed

concern for Acosta’s right to due process and excluded the illegally obtained evidence from its calculation. This, however, didnot remove the evidence itself from the offense conduct actually charged in the indictment. A district court "need not make open-court findings on the statutory factors w hen is suing a restitution order so long as the record on appeal reveals that the judge made implicit findings or otherwise adequately evin ced his considerations of those factors." Neal , 36 F.3d at 1200 (citing Savoie , 985 F.2d at 618). The district court adequately explainedthat the policies underl ying i ts decision to apply the exclusionaryrule in calculating o ff ense level were different fromthe strong p ol icy considerations underlying the victims’ right to compensation:-27- I’mnot sure the police misconduct should inure to the d etr iment of a victim with respect t o the restitution. That’s a whole different pathway of legal social policy issues to be considered. It’s one thing to say we’re not going to use evidence o btai ned through police misconduct for the purpose of enhancing your incarcerative sentence. It’s quite ano th er thing to say to an innocent victimwe’re going to use police misconduct for the purposes of depriving y ou of your right to restitution. . . . I think the policies underlying my decision to apply the exclusionaryrule here would apply only to the punishment with respect to the incarcerative sentence. Hadthe district court considered the suppressed evidence in sentencing (as our preceding analysis show s it c ould properly have done), it could have calculated an offense level base don all the transactions – suppressed and unsuppressed. Prohibiting the court from usin g this same evidence to calculate restitution would lead to the absurd result that although the defendant could have been serving a sentence based in part on the suppress edo ffenses, the victims of these offenses would not receive compensation for their losses. Neither Hughey nor the VWPA, whose objective is to compensate a wide class of victims for their losses, could have intended such an outcome.

T he record is clear that the district court exam ine d the factors surrounding the charges in the government’s letter to the Probation Office listing its requested restitution amou n ts.-28-

The lette r, pre pared from affidavits of actual loss submitted by the victim credit card companies, incl uded the suppressed evi dence. Although the letter (and PSR) referred to these transactions as "relevant conduct," the governme nt ar gues that they fall within the scope of Acosta’s criminal conduct in the indictment and further support the contention that the suppressed evidence was conduct that was the basis for the offense of conviction. Acosta did not dispute the accuracy of the amounts in the letter; his objection rested on his argument that the suppressed evidence should not be used to calculate restitution.

As the government points out, the language of the indictment is broad enough to encompass Acosta’s criminal conduct of using both the suppressed and unsuppressed credit cards in the ten-month period it covers. See , e.g. , United States v. Silkowski , 32 F.3d 682, 689 (2d Cir. 1984) (noting that defendant must pay restitution o nly fo r losses "directly caused by conduct within the temporal limits of the offense of conviction"); United States v. Bailey , 975 F.2d 1028, 1033 (4th Cir. 1992) (upholding restitution award to investors not mentione d in indictment and distinguishing Hugheywhere the of fens e of "defrauding investors of monies in excess of fifteen million dollars" was "defined broadly in the indictment"); see also United States v. Pepper , 51 F.3d 469, 473 (5th Cir. 1995) (holding the dates specified in the-29-

indictment, along with a description of the unlawful conduct in a scheme or defraud case, were sufficiently specific to satisfy Hughey ); United States v. Wise , 990 F.2d 1545, 1548 (10th Cir. 1992) (holding the district court erred in ordering restitution in excess of the specific amount to which the defendant pled guilty); cf. United States v. Akande , 200 F.3d 136, 142-43 (3rd Cir. 1999) (vacating restitution order for losses caused by conduct that fell outside the dates of the offense where the indictment listed the time frame as "on or about December 31, 1997," but the plea agreement and colloquy established t hat the offense charged did not occur b efo re December 31, 1997); United States v. Hayes , 32 F.3d 171, 172-73 (5th Cir. 1994) (vacating restitution order for losses incurred before the date of the offense of conviction); United States v. Cook , 952 F.2d 1262, 1264-65 (10th Cir. 1991) (vacating restitution order for losses connectedto a forty-three count indictment where the defendant pledguilty to only three counts but the district court erroneouslyconstrued the la nguage of the plea agreement to find that a guilty plea to one count was effectively a guilty plea to all other counts). Th e su ppressed transactions clearly fell within the description of the off ense and t he time frame of the conduct of use or attempted use of unauthorized access devices during a ten-month period to which Acosta pled guilty.-30- To summarize, the district court was not barr ed from using the suppressed evidence in calculating res titution as part of Acosta’s sentence. We are satisfied that the indictment adequatelydetailed the offense of conviction to enable the district cour t , in ordering restitution, to consider the suppressed evidence as that underlying the conduct of conviction. We are satisfied that althoug h t he district court did not explicitly say it was considering the suppressed evidence conduct of conviction, it did in fact do so and t herefore did not err in its restitution calculation. Accordingly, we hold that there was

no plain error in the district court’s use of the suppressed evidence to calculate restitution. III. CONCLUSION

The district court’s calculations of both loss and restitution are AFFIRMED.