United States Court of Appeals

For the First Circuit

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 Defender, with

whom Owen S. Walker, Federal Public Defender, was on brief for

appellant.

Jean B. Weld, Assistant U.S. Attorney, with whom Thomas P.

Colantuono, U.S. Attorney, was on brief for appellee.

____________________

August 30, 2002

____________________
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BOWNES, Senior Circuit Judge. Defendant-appellant

Cesar Acosta pled guilty to a one-count indictment charging him

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 district 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

card in the name of Nelson Barrera to purchase three $250 gift

cards from a J.C. Penney store in Nashua, New Hampshire. Store

security officer Mark 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 experienced losses arising from multiple gift

card purchases through counterfeit credit cards. At the time he

observed Acosta, Kidd was unaware that the defendant was using a

fraudulent card. Sears security videotaped Acosta as his card
1The record suggests, but is not entirely clear, that Acosta

was driving out of the garage.

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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

gift certificates from a Target store in Nashua, New Hampshire,

using a MasterCard also 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

had an apartment.1 Acosta showed her a New 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 accompanied her to the police

station in Castanos’s car. 
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In an interview at the police station, Acosta admitted

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 items purchased with these cards, receipts,

and additional fraudulent credit cards. Acosta accompanied

investigators to the apartment, showed them the evidence, and

provided them with seventeen credit cards in several different

names. 

Prior to Acosta’s interrogation, Officer Kidd also

learned of fraudulent credit card charges at a J.C. Penney store

in Concord, New Hampshire, on February 21 and 22, 2000. These

charges, on a card issued to Rafael Vila, consisted of four $250

gift card purchases and a $124.98 merchandise purchase, totaling

$1,124.98. The government linked Acosta to these transactions

through his use of an American Express card to fraudulently

purchase gift cards at a J.C. Penney in Salem, New Hampshire, on

January 10, 2000. Later, an individual using the name Joseph

Trimpin redeemed the J.C. Penney gift cards purchased by both
2Investigators also learned of various other unauthorized

MasterCard and American Express charges that Acosta does not

dispute on appeal. 

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Vila and Acosta at a store in Miami, Florida.2 Through Trimpin’s

actions, the government linked Acosta to the Vila transactions. 

B. Procedural History

On November 9, 2000, Acosta was indicted on one count

of possession of, with intent to defraud, fifteen or more

counterfeit or unauthorized access devices (credit cards), in

violation of 18 U.S.C. § 1029(a)(3). Acosta 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 indictment. On March 15,

2001, the government reindicted Acosta on one count of

fraudulently using and attempting to "use one or more

unauthorized access 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 January 1, 2000 and
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October 25, 2000, in violation of 18 U.S.C. §§ 1029(a)(2) and

(b)(1). Acosta filed another motion to suppress, which the

district court dismissed as moot based on the government’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 district court also dismissed as moot Acosta’s

motion to dismiss or, in the alternative, for a bill of

particulars because "the government has represented that the

indictment’s reference to 'other 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 indictment] is subject to the

suppression decision" and that it would not attempt to use the

suppressed evidence without the court’s permission. 

Acosta pled guilty to this new indictment and signed a

binding plea agreement stipulating that the amount of loss from

his charged conduct did not exceed $40,000. 

The government also filed a sentencing memorandum with

attachments 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
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the card had been legitimately issued to Olgamarina De Tunez of

Miami, Florida. The memo report contained a list of seventy-six

fraudulent charges 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

included transactions at Henri Bendel, a business in New York

City, on September 7, 2000; K-Mart in North Miami, Florida, and

Sam Goody in Salem, New Hampshire, all on September 14, 2000;

Sears Roebuck in Manchester, New Hampshire, on September 15,

2000; Scoop East in New York City and Lenscrafters and Sears

Roebuck in Nashua, New Hampshire, all on September 24, 2000; as

well as myriad other transactions at New Hampshire and

Massachusetts businesses. The fraudulent charges to this

account, an account known to investigators prior to their

obtaining the suppressed evidence on October 25, 2000, totaled

$17,243.69. 

At sentencing, the district court ruled that the

suppressed evidence could not be used 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

included them to calculate total loss. The court included the

$1,124.98 in purchases by Vila, $17,243.69 in American Express

Card purchases, $1,498.99 from Acosta’s fraudulent use of a
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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 imprisonment 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 adopted 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

loss, along with its resulting offense level, and restitution.

On loss, he contests both the $17,243.69 American Express figure,

arguing it should be $750.00, and the $1,124.98 figure, claiming

no part of it should be attributed to him. He contends that his

sentence should be based on a loss figure of less than $5,000,

resulting in an offense level 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 suppressed

transactions. We reject both arguments. 
-9-

A. Loss Calculation 

Acosta argues that the district court erred in

calculating his offense level by including unsuppressed credit

card charges that the government did not prove Acosta personally

made. We review 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 is more an art

than a science. . . . [A] party dissatisfied

with the sentencing court's quantification of

the amount of loss in a particular case must

go a long way to demonstrate that the finding

is clearly erroneous. 

United States v. Rostoff, 53 F.3d 398, 407 (1st Cir. 1995)

(citations omitted). The government must prove the amount of

loss under U.S.S.G. § 2F1.1 by a preponderance of the evidence.

United States v. Vaknin, 112 F.3d 579, 582-83 (1st Cir. 1997);

United States v. Keifer, 198 F.3d 798, 800 (10th Cir. 1999). The

sentencing must be based on information bearing "sufficient

indicia of reliability to support its probable accuracy."

U.S.S.G. § 6A1.3(a), p.s. (2001).

Acosta argues that the district court and government

were merely speculating that he was the only person with access

to the unauthorized American Express card number 371388014444020.
3The Miami charge was ultimately excluded from the loss

calculation.

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He points out that because the card was not a stolen card, but

rather a card manufactured fraudulently using an illegallyobtained card number, the likelihood was very low that a person

would go to the trouble of fraudulently obtaining a credit card

number only to produce just one fake card and then take that card

from Florida to New England to sell 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

explained the potential problem by saying that the Miami use was

erroneously classified as fraudulent and was in fact a legitimate

transaction.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

fraudulent card was 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 possible that the New York purchases were made by

telephone or that he traveled to both states on the same day,

Acosta argues that these scenarios are highly unlikely and the
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government’s evidence linking him to these purchases is

insufficient. 

Accordingly, Acosta argues, he should be held

responsible only for the three of the seventy-six uses of

American Express Card number 371388014444020 that occurred on

October 2, 2000, at J.C. Penney in Nashua, New Hampshire. In

contrast, the government argued, and the court found, that all

uses of this card, totaling $17,243.69, were attributable to

Acosta. 

At the sentencing hearing, the district court judge

concluded that the government 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’m satisfied 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 made phone calls to these New York

Stores and ordered whatever was ordered. You

don’t have to be personally there. It could

be phone calls. It could be whatever. He

had the card in his possession. He was in

the area. There’s no evidence that convinces

me or satisfies me that there’s a real

plausibility of another duplicate card out

there other than the original card, so I
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think the government’s met its burden of

proof with respect to that number. 

Excluding the suppressed evidence to calculate loss for

sentencing purposes, the court eliminated $2,831.31 and adopted

the $17,243.69 figure as charges to American Express card number

371388014444020. This excluded the Miami, Florida, charge.

Indeed, most of the charges attributed to Acosta

occurred in a tight geographical 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

charged to American Express card number 371388014444020, only

three were made in New York, which is outside the tight

geographical area. The district court concluded that Acosta

could have made these charges himself, likely over the phone or

in person. 

Considering the argument that the purchases made on the

card issued to Vila should not be attributed to Acosta, the

district court recognized that the question was a "close" one but

determined that the government had met its burden, establishing

"by a preponderance of the evidence . . . that [the] charge made

by Mr. Vila, independently [of the] suppressed evidence, was made
4The district court explained:

I think it would certainly be demonstrable that Mr. Kidd

concluded, and certainly the Court would conclude, that

once it’s established that Barerra [sic] is Acosta and

Barrera has purchased gift certificates with a fraudulent

card, and the 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. 

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by Mr. Acosta."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 erred 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. Savoie, 985 F.2d 612, 618 (1st

Cir. 1993). 
5Nevertheless, this rule has not been met with universal

acclaim. Raposa, 84 F.3d at 505 (citing United States v. Jewel,

947 F.2d 224, 238-40 (7th Cir. 1991) (Easterbrook, J., concurring);

United States 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)). 

6The only other circuit that has not yet addressed this issue

after the passage of the 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 that

deterrent effect of extending the exclusionary rule to sentencing

"would be so minimal as to be insignificant"). 

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1. Use of Suppressed Evidence

This Circuit has yet to decide whether a court may use

evidence suppressed under 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 courts 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 findings required under the

Guidelines."5 Id. at 504. Indeed, ten other circuits have ruled

that in most circumstances, the Fourth Amendment exclusionary

rule does not bar the introduction of suppressed evidence during

sentencing proceedings.6 United States v. Ryan, 236 F.3d 1268,

1271-72 (10th Cir. 2001) (citing United States v. Brimah, 214
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F.3d 854, 857-59 & n.4 (7th Cir. 2000) (holding exclusionary rule

at sentencing 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

from illegal search and seizure at sentencing, but leaving open

the question of whether the rule applies when police

intentionally act illegally to enhance defendant's sentence or

had an "undue incentive" to so act); United States v.

Montoya-Ortiz, 7 F.3d 1171, 1181 & n.10 (5th Cir. 1993) (holding

exclusionary rule is generally inapplicable to sentencing

proceedings, but suggesting that illegally seized evidence could

be excluded if it was seized for the sole purpose of enhancing

defendant's sentence); United States v. Jenkins, 4 F.3d 1338,

1344-45 (6th Cir. 1993) (permitting the use of illegally seized

evidence after finding no indication that evidence was obtained

to enhance defendant's sentence); United States v. Tejada, 956

F.2d 1256, 1263 (2d Cir. 1992) ("Absent a showing that officers

obtained evidence expressly to enhance a sentence, a district

judge may not refuse to consider relevant evidence at sentencing,
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even if that evidence has been seized in violation of the Fourth

Amendment."); United States v. Lynch, 934 F.2d 1226, 1236-37 &

n.15 (11th Cir. 1991) (admitting illegally obtained evidence and

reserving question of whether suppression would be necessary if

illegal search was done with purpose of increasing defendant's

sentence); McCrory, 930 F.2d 63, 69 (D.C. Cir. 1991) (same);

United States v. Torres, 926 F.2d 321, 325 (3d Cir. 1991)

(same)). Nine of these circuits have added or left open the

possibility that the exclusionary rule will still apply if there

is an indication 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; Jenkins, 4 F.3d

at 1345; Tejada, 956 F.2d at 1263; Torres, 926 F.2d at 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., Tejada, 956 F.2d at 1262 (concluding that

allowing 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. They
718 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 discretion is not

unlimited in 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 available to fashion an appropriate remedy

and that the Sentencing Guidelines allow the sentencing court to

consider, without limitation, any information concerning the

defendant’s background, character, or conduct. E.g., McCrory,

930 F.2d at 68; 18 U.S.C. § 3661 (2000);7 see also United States

v. Robins, 978 F.2d 881, 891 (5th Cir. 1992) (noting that "[i]t

is a fundamental principle of sentencing that a district court

may conduct an inquiry 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

safeguard Fourth Amendment rights generally

through its deterrent effect, rather than a

personal constitutional right of the party

aggrieved. Despite its broad deterrent
8We note that the evidence suppressed by the district court

included both credit cards and receipts seized in violation of

Acosta’s Fourth Amendment rights and statements investigators

obtained from Acosta in violation of his Fifth Amendment rights.

The dispute before us for restitution purposes concerns only the

suppressed credit card receipts.

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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 rule on police misconduct

against the potential benefit of extending the rule to grand jury

proceedings). 

It is clear that in sentencing, consideration of

evidence 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

from a broad spectrum of sources." Torres, 926 F.2d at 325.

Given the great weight of the precedent and following the

unanimous, reasoned approach of our sister circuits, we hold that

the exclusionary rule does not bar the use of evidence seized in

violation of a defendant’s Fourth Amendment rights in

sentencing.8 We leave open the question of whether the

exclusionary rule would bar the use of evidence when police

intentionally act in violation of the Fourth Amendment in order
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to increase a defendant’s sentence. 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

acted with intent to enhance Acosta’s sentence. The district

court found no such intent and neither side disputes this

conclusion. Determining that the district court could properly

have considered the suppressed evidence in Acosta’s sentencing

proceedings, 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 the defendant 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 degree possible, the harm he has caused to

the victim." Vaknin, 112 F.3d at 582 (citation and internal

quotations omitted) (alteration in original). The Supreme Court

has held that this statute limits restitution awards to "the loss

caused by the specific conduct that is the basis of the offense

of conviction." Hughey v. United States, 495 U.S. 411, 413

(1990). In addition, where the criminal conduct includes "an
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offense that involves as an element 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 restitution is part of a

sentence. See, e.g., United States v. Wallen, 953 F.2d 3, 4 (1st

Cir. 1991) (referring 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 restitution" (emphasis added)). Thus,

under the VWPA and Hughey, the suppressed evidence in this case

may be included in the restitution award only if (1) the offense

involved a scheme, conspiracy, or pattern of criminal activity;

or (2) the evidence represents conduct 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 course of the scheme, conspiracy, or pattern may be

considered in calculating restitution. Thus, if this case
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involved a 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

pattern of criminal activity. Acosta pled guilty to "knowingly

and with intent to defraud traffic[king] in or us[ing] one or

more unauthorized access devises during any one-year period, and

by such 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 violation 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 question of whether the suppressed

credit cards represented conduct that was the basis of the

offense of conviction. Surprisingly, none of the proceedings

below considered whether this evidence was conduct of conviction.

Rather, this evidence was treated as "relevant conduct"
9In the Presentence Report (PSR), the suppressed transactions

are listed under the heading "Offense Conduct," along with a

notation that the evidence was suppressed. The PSR refers to the

suppressed transactions as "relevant conduct to the offense of

conviction." 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

memorandum and its letter to the Probation Office listing the

restitution amounts requested. The district court adopted this

letter as an exhibit and used the amounts in it to order

restitution. The Presentence Report also referred to these items

as relevant conduct. 

-22-

throughout.9 The distinction between relevant conduct and

conduct underlying the offense of conviction is an important one.

Unless the offense involves as an element a scheme, 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.3d 196, 198 & n.1 (1st Cir. 1994). Nevertheless, the

responsibility to bring this issue to the court’s attention

rested with 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 error adversely
-23-

impacted the fairness, integrity, or public repute of judicial

proceedings." 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

suppressed transactions as relevant conduct below, and the fact

that the government’s proffer at the change of plea hearing

included only the unsuppressed evidence, the evidence does not

support the argument that the suppressed credit cards represented

conduct of conviction. He further contends that because the

district court declined to use the suppressed evidence in

calculating the offense level as a due process matter because the
10In excluding the suppressed evidence from the loss

calculation, the district court reasoned:

I think I'm satisfied that, given the totality

of the circumstances, the fact that the

violation of the defendant's constitutional

rights was egregious, that the suppressed

evidence as a matter of due process should not

be used to enhance his sentence under the

applicable Sentencing Guidelines. I don't find

that the police officers had an intent to

enhance the sentence. . . . However, the

violations are egregious, and I think the

purposes underlying the exclusionary rule are

well served . . . where we have egregious

violations and where the evidence, having been

suppressed in one case, is attempted to be used

in a subsequent case to enhance the punishment.

11At least in the scheme context, other circuits have

determined the full amount of restitution authorized by 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 scope of the scheme for restitution purposes (citing

United States 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); United States v. Turino, 978 F.2d 315, 319 (7th Cir. 1992).

-24-

violation of his rights was "egregious," 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 broad,11 charging
12Congress responded to Hughey by expanding the scope of the

VWPA to 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-

him with using and attempting to use "one or more unauthorized

access devices" during a ten-month period and obtaining value of

at least $1,000 from this conduct. It specifically noted that

this conduct included, but was "not limited to," American Express

card number 371388014444020. The government points out that

charging 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 conduct of conviction, is

misplaced. In Hughey, the defendant pled guilty 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 included the use of other credit cards to

which the defendant had not pled guilty. Id. at 422.12 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 of 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 the

restitution calculation. We do not 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,

did not 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 when issuing a

restitution order so long as the record on appeal reveals that

the judge made implicit findings or otherwise adequately evinced

his considerations of those factors." Neal, 36 F.3d at 1200

(citing Savoie, 985 F.2d at 618). The district court adequately

explained that the policies underlying its decision to apply the

exclusionary rule in calculating offense level were different

from the strong policy considerations underlying the victims’

right to compensation: 
-27-

I’m not sure the police misconduct should

inure to the detriment of a victim with

respect to 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 obtained

through police misconduct for the purpose of

enhancing your incarcerative sentence. It’s

quite another thing to say to an innocent

victim we’re going to use police misconduct

for the purposes of depriving you of your

right to restitution. . . . I think the

policies underlying my decision to apply the

exclusionary rule here would apply only to

the punishment with respect to the

incarcerative sentence.

Had the district court considered the suppressed

evidence in sentencing (as our preceding analysis shows it could

properly have done), it could have calculated an offense level

based on all the transactions – suppressed and unsuppressed.

Prohibiting the court from using 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

suppressed offenses, 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.

The record is clear that the district court examined

the factors surrounding the charges in the government’s letter to

the Probation Office listing its requested restitution amounts.
-28-

The letter, prepared from affidavits of actual loss submitted by

the victim credit card companies, included the suppressed

evidence. Although the letter (and PSR) referred to these

transactions as "relevant conduct," the government argues 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 only for 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 mentioned in indictment and

distinguishing Hughey where the offense 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 that the

offense charged did not occur before 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

connected to a forty-three count indictment where the defendant

pled guilty to only three counts but the district court

erroneously construed the language of the plea agreement to find

that a guilty plea to one count was effectively a guilty plea to

all other counts). The suppressed transactions clearly fell

within the description of the offense and the 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 barred from

using the suppressed evidence in calculating restitution as part

of Acosta’s sentence. We are satisfied that the indictment

adequately detailed the offense of conviction to enable the

district court, in ordering restitution, to consider the

suppressed evidence as that underlying the conduct of conviction.

We are satisfied that although the district court did not

explicitly say it was considering the suppressed evidence conduct

of conviction, it did in fact do so and therefore 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.