United States v. Murry, Darnell

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2413

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DARNELL MURRY,

Defendant-Appellant.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 CR 1056—Suzanne B. Conlon, Judge.

____________

ARGUED APRIL 6, 2004—DECIDED JANUARY 3, 2005

____________

Before RIPPLE, KANNE and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. A jury found Darnell Murry

guilty of one count of transporting fraudulently obtained

merchandise across state lines in violation of 18 U.S.C.

§§ 2314 and 2, and one count of obtaining goods valued at

over $1000 through the unauthorized use of an access de-

vice in violation of 18 U.S.C. § 1029(a). On appeal, Murry

challenges both his conviction and his sentence, claiming

the district court erred in several evidentiary rulings and in

instructing the jury on the use of summary charts admitted

into evidence. He complains the court also erred in setting

2 No. 03-2413

the amount of restitution he is required to pay as part of his

sentence. We affirm the conviction but vacate and remand

the sentence so that the district court may adjust the

restitution order.

I.

Murry devised a simple scheme to lift large amounts of

merchandise from stores without paying for it so that he

could resell it on the street. In the beginning of this ill-con-

ceived venture, Murry simply added himself as an autho-

rized user on the store credit card accounts of unsuspecting

shoppers. He then purchased goods in person at the stores

or placed telephone orders for merchandise and sent his

cousin, Horatio Jones, to pick up the items with a rented

truck. Co-defendant Kwonnie Stanciel also assisted Murry

by finding buyers for the fraudulently obtained merchan-

dise. Evidence at the trial showed that Murry used twenty-

five credit card account numbers belonging to twenty-three

different victims to complete or attempt to complete pur-

chases totaling more than $250,000 at Home Depot, Sam’s

Club and Wal-Mart stores in Illinois, Michigan, Wisconsin

and Indiana. All of these stores had credit programs run by

GE Capital. The purchases were made between March 28,

2002 and October 31, 2002.

Jones was eventually arrested trying to pick up a load of

hardwood flooring that Murry had ordered using one of the

fraudulent accounts. Jones agreed to cooperate with the

government in an investigation of Murry’s fraudulent pur-

chases. Jones subsequently recorded phone calls with Murry

in which Murry asked Jones to pick up more hardwood

flooring from Home Depot stores in Michigan and Indiana.

On October 31, 2002, the scheme came to an end. Jones had

recorded calls in which Murry asked him to pick up $12,000

worth of hardwood flooring from a Home Depot store in

Indiana. Murry had ordered the flooring by phone, again

No. 03-2413 3

using one of the accounts to which he had fraudulently

added his name as an authorized user. Murry and Stanciel

drove a car to the Indiana Home Depot with Jones following

in a truck. Unbeknownst to Murry, their small convoy was

accompanied by a number of federal agents witnessing the

transaction. After the merchandise pick-up, Murry directed

Jones to an alley in Chicago to deliver the goods. Murry was

then arrested and charged as we have described above.

All of the purchases that were at issue at trial were sum-

marized in charts admitted as Exhibits 222 and 223.1 The

charts were prepared by Kellie Meador, an employee of GE

Capital, and were based on the business records of GE

Capital. Exhibit 222 displayed the purchases made at Home

Depot stores, and Exhibit 223 illustrated the purchases at

Sam’s Club stores. Although the underlying business rec-

ords of GE Capital were not introduced into evidence at

trial, for every transaction listed on the summary charts a

corresponding receipt or order form was introduced into

evidence from the records of the stores themselves. The

Home Depot summary chart consisted of eleven columns,

titled “Account #”, “Name”, “Auth Name”, “Auth User

Added”, “Account Open Date”, “Write Off/Adj Amt”, “Date

of Transaction”, “Transaction Amount”, “Store #”, “Called

By”, and “Call Date”. The Sam’s Club summary chart

consisted of ten columns, identical to those included on the

Home Depot chart minus the “Auth User Added” column.

For five of the Home Depot accounts, the authorized user

listed is Darnel Murry. Other authorized users included

David Cole and Thomas Toomey, aliases linked to Murry by

other evidence submitted at trial. On the Sam’s Club

accounts, the authorized users added to the accounts were

either Darnel Murry or Darael Murry, another alias linked

1

The charged conduct included both completed and attempted

transactions. For brevity, we will simply refer to the attempted

and completed transactions together as “purchases.”

4 No. 03-2413

to the defendant. The “Called By” column listed phone

numbers from which GE Capital received inquiries about the

account in question. The six different phone numbers used

to access account information were all linked to Murry

through cell phones or through his home address through

other evidence at trial. After two of the primary account

holders testified at trial that they did not know Murry,

never added him to their credit card accounts as an autho-

rized user, never made the purchases in question and did not

authorize Murry to make any purchases for them, Murry

stipulated that the rest of the account holders would testify

in the same manner. This stipulation established that each

and every purchase was unauthorized.

The summary charts were not the only evidence against

Murry. A Home Depot loss prevention employee testified

that he observed Murry purchase several expensive tools,

including multiples of the same tool, from the store’s “tool

corral,” an area that contains high end, frequently stolen

merchandise. The employee videotaped the purchase, which

Murry made with one of the fraudulently obtained credit

cards. The receipt for this purchase was also admitted as

evidence, showing that Murry had used one of the fraudu-

lently obtained credit cards. The purchase totaled approxi-

mately $1400. The prosecution entered into evidence another

videotape of Murry making a different purchase using that

same credit card, and again the receipt was admitted into

evidence. This receipt displayed Murry’s driver’s license

number, which was written down by a store clerk at the

time of the purchase.

One of Murry’s cohorts in this crime spree testified against

him at trial. His cousin, Horatio Jones, testified that he

picked up merchandise for Murry on multiple occasions from

Home Depot stores in Illinois, Indiana, Wisconsin and

Michigan. Jones’ testimony was corroborated by the recorded

phone calls we mentioned above and by order forms for the

purchases, each bearing Jones’ signature, an account num-

No. 03-2413 5

ber of one of the victims, and a phone number linked to

Murry from which the order was placed. For these transac-

tions alone, the purchases totaled more than $80,000.

Additional evidence was provided by a Sam’s Club em-

ployee who testified that Murry added himself as an au-

thorized user to one of the victim’s credit card accounts by

filling out a form at the store. The employee photocopied

Murry’s driver’s license as part of the transaction, and both

the application form and the driver’s license photocopy were

admitted as evidence. Another Sam’s Club employee, a

supervisor at the membership desk, testified that she saw

Murry attempt to make a purchase using a membership

card that bore his picture and the name of one of the victims.

When she told Murry that she needed a manager’s approval

to complete the transaction, Murry left the store and left

the membership card behind. The card bearing Murry’s

likeness and the name of the account holder/victim was ad-

mitted at trial. Seven other photographs of Murry taken by

Sam’s Club employees when he added himself to other

victim accounts were admitted into evidence.

Finally, the government submitted fingerprint evidence

against Murry. One document containing Murry’s finger-

prints was a Home Depot order form that Murry gave to

Jones after placing an order and asking Jones to pick it up

for him. Murry’s cell phone number also appeared on the

order form. A second document containing Murry’s prints

was a Sam’s Club receipt for items totaling $1911.26,

charged to one of the accounts on which Murry stipulated

he was not an authorized user. The government produced

a third document containing Murry’s prints, the application

form that Murry filled out when adding himself as an

authorized user to one of the accounts. The application con-

tained his name, and the government also produced a

photocopy of Murry’s driver’s license taken when he filed

the application. The last document containing Murry’s fin-

gerprints was another receipt documenting an unauthorized

6 No. 03-2413

purchase. Two of these documents were damaged or destroyed

by the process used to lift the fingerprints, and so copies of

the originals were introduced into evidence at trial. All in

all, more than 220 exhibits were introduced at trial, in-

cluding receipts for fraudulent credit card purchases from

Home Depot, Sam’s Club and Wal-Mart totaling more than

$240,000, order forms for Home Depot telephone orders,

Sam’s Club membership forms, documents reflecting the

pickup of Sam’s Club membership cards, a Sam’s Club card

in a victim’s name containing Murry’s photograph, photo-

graphic negatives and prints of pictures taken when Murry

added himself as an authorized user to certain accounts,

videotapes of Murry making purchases, audiotapes of phone

calls, telephone records, receipts, and fingerprint evidence.

The links between Murry and the fraudulent purchases

were numerous. The receipts submitted into evidence were

all signed either “Darnel Murry” or “Dareal Murry.” Some

of the receipts contained Murry’s driver’s license or state

identification numbers. The photographs taken when Murry

added himself to certain of the accounts were labeled with

the name “Darael Murry.” Murry’s name (with either Dareal

or Darnel as the first name), address, phone number, driver’s

license number and his state identification number were

listed on documents identifying Murry as a secondary user

of credit cards belonging to others. Murry’s driver’s license

was photocopied multiple times by Sam’s Club employees

when he picked up secondary user cards at Sam’s Club

stores. The telephone numbers appearing on documents

identifying Murry as a secondary user of certain credit

cards and on Home Depot order forms as well as the phone

numbers used to access the credit card accounts were all

telephone lines and/or cell phones where Murry or someone

at his residence was the main subscriber.

All of this evidence was presented in the course of a two-

day trial. On the morning of the third day, the jury con-

vened at 9 a.m. to begin its deliberations. As we have

No. 03-2413 7

described above, the evidence left little to the imagination,

and the verdict was announced an hour and a half later.

The court sentenced Murry to 125 months’ imprisonment to

be followed by a three-year term of supervised release. The

court ordered restitution in the amount of $647,045.22

payable to GE Capital. This amount was based on the total

loss shown at trial as well as additional documentation

provided by GE Capital in the sentencing phase. Murry

appeals.

II.

On appeal, Murry contends that the district court erred

in instructing the jury that summary Exhibits 222 and 223

accurately reflected the underlying records, and that this

error plainly prejudiced the outcome of the trial. Murry also

maintains that the trial court abused its discretion by

admitting Exhibits 222 and 223 because there was no show-

ing on the record that the government had made the under-

lying documents available to the defendant for review, and

because the foundation for these exhibits was inadequate.

According to Murry, the admission of these exhibits pre-

judiced his substantive rights and he would not have been

convicted without this evidence. Murry also argues that the

court plainly erred when it allowed the government’s

fingerprint analyst to testify to the contents of Home Depot

and Sam’s Club business records. Murry also challenges the

admission of two of the fingerprint documents on the

grounds that they were not properly authenticated and be-

cause the government failed to present the chain of custody

from Sam’s Club to the government’s fingerprint expert.

Finally, Murry challenges the amount of restitution ordered,

arguing that the court erred in ordering restitution in part

for uncharged conduct.

8 No. 03-2413

A.

At trial, when the parties addressed the jury instructions

with the court, the district judge asked twice whether coun-

sel objected to any of the jury instructions. Murry’s counsel

replied, “Judge, I don’t object to anything.” Tr. at 409. He

then asked for a single change to an unrelated instruction

and the court modified the instruction per his request. The

government then requested a number of changes to the

instructions and after that colloquy, the court asked a sec-

ond time, “Are you in agreement with all of those?” Murry’s

counsel replied, “I do agree. That’s fine. Yes, your Honor.”

Tr. at 414. The government contends that this express

agreement with the jury instructions constitutes waiver of

any issue related to the jury instructions. Waiver precludes

appellate review, the government argues. Murry counters

that he did not intentionally relinquish any rights and

therefore, at worst, he forfeited the issue and we may review

it for plain error.

Waiver occurs when a defendant intentionally relinquishes

a known right. United States v. Staples, 202 F.3d 992, 995

(7th Cir. 2000). Waiver extinguishes the error and precludes

appellate review. United States v. Cooper, 243 F.3d 411, 415

(7th Cir.), cert. denied, 534 U.S. 825 (2001); Staples, 202 F.3d

at 995. Forfeiture occurs when a defendant negligently fails

to assert his or her rights in a timely fashion. Cooper, 243

F.3d at 415-16 (forfeiture is an accidental or negligent

omission, or an apparently inadvertent failure to assert a

right in a timely fashion); Staples, 202 F.3d at 995. In the

case of forfeiture, we may review a ruling for plain error.

Cooper, 234 F.3d at 415; Staples, 202 F.3d at 995. In this

case, Murry waived his objection to the jury instruction at

issue. The trial court asked Murry’s counsel twice whether

he had any objections to the instructions and twice he

replied definitively that he did not. He was thus aware that

he could lodge an objection and purposefully declined to do

so. We have found waiver in a number of similar instances

No. 03-2413 9

when the defendant or his attorney expressly declined to

press a right or make an objection. Cooper, 243 F.3d at 415;

United States v. Richardson, 238 F.3d 837, 841 (7th Cir.),

cert. denied, 532 U.S. 1057 (2001). In Richardson, the court

asked the defendant’s lawyer at a sentencing hearing

whether he had an objection to a particular sentencing

enhancement, and the lawyer said “no.” We found that

“[t]his was a waiver in the strict sense of the term, that is,

a deliberate relinquishment of a known right. As such it is

barred from receiving further judicial consideration.” 238

F.3d at 841. See also United States v. Redditt, 381 F.3d 597,

602 (7th Cir. 2004) (when trial counsel affirmatively stated

that he had no objection to the admission of certain evi-

dence, he has intentionally waived any argument to the

contrary); United States v. Pittman, 319 F.3d 1010, 1012

(7th Cir. 2003) (defendant waived an issue when trial

counsel affirmatively represented that he had no objection

to the admission of the evidence). Murry’s lawyer clearly

and affirmatively stated that he had no objection to the jury

instructions. Any objection was therefore waived and

appellate review is precluded.

B.

We turn to the district court’s admission of the summary

exhibits. Murry complains that the government did not lay

an adequate foundation for the admission of these exhibits

because it failed to make the underlying records available

to the defense before trial. Exhibits 222 and 223 were ad-

mitted into evidence under Federal Rule of Evidence 1006.

That rule provides:

The contents of voluminous writings, recordings, or

photographs which cannot conveniently be examined in

court may be presented in the form of a chart, sum-

mary, or calculation. The originals, or duplicates, shall

be made available for examination or copying, or both,

10 No. 03-2413

by other parties at [a] reasonable time and place. The

court may order that they be produced in court.

Fed. R. Evid. 1006. Murry argues that making the underly-

ing records available is a foundational requirement for the

admission of summaries under Rule 1006. He contends that

defense counsel was never provided with a list of the

documents on which Kellie Meador, the GE Capital employee

who prepared the exhibits, relied in creating Exhibits 222

and 223. Because of this, he continues, the district court

abused its discretion in admitting the summary documents.

The government disputes this foundation claim both fac-

tually and legally and also argues in the first instance that

Murry waived his objections to the admission of the sum-

mary charts. As a factual matter, the government points out

that nothing in the record supports Murry’s claim that the

underlying records were not made available to defense

counsel prior to trial. Moreover, because Murry did not

object at trial to the supposed absence of the underlying

records, the government never had an opportunity to dem-

onstrate on the record that it had in fact made the records

available. The government contends that no precedent re-

quires the government to demonstrate on the record that it

had complied with its pre-trial discovery obligations under

Rule 1006. The record on direct appeal cannot resolve this

factual dispute regarding whether the government made

the underlying documents available to Murry’s lawyer

before trial.

That deficiency in the record, though, does not preclude

us from considering the government’s claim that Murry

waived his objection to the admission of the summary charts.

According to the government, Murry’s lawyer did not raise

any objections to the charts at trial but instead affirma-

tively stated he had no objection to the admission of the

exhibits. A quick review of the record confirms the govern-

ment’s portrayal of the admission of Exhibits 222 and 223.

No. 03-2413 11

During its direct examination of Meador, the government

asked a number of foundation-based questions. The pros-

ecutor asked Meador, among other things, what records she

used in preparing the exhibits, whether those records were

kept in the ordinary course of business, whether the records

were created at the time of the events reflected in them,

and whether the summary charts accurately summarized

GE Capital business records. Tr. at 126-28. In light of

Meador’s affirmative responses to the key foundational

questions, the government moved to admit Exhibits 222 and

223. Tr. at 128. In response to this motion, Murry’s attorney

stated, “No objection, your Honor.” Tr. at 128. Additionally,

at sentencing, the government presented two summary

charts and the court asked Murry’s attorney, “Do you wish

to contest the foundation or admissibility of the government’s

summary charts? One of which was admitted into evidence

at trial?” Murry’s attorney replied, “Judge, no, those were

summaries of the documents. So far as the admissibility, I

would have no basis for an objection for that.” Sentencing

Tr. at 3. Later in the same colloquy, Murry’s attorney chal-

lenged the weight to be given to the summary exhibits and

in particular challenged whether the phone numbers listed

on the exhibits truly linked Murry to the crime, but he

expressly did not challenge admissibility.

These two exchanges make clear that Murry’s attorney

knew he could object to the admission of the summary charts

and purposefully declined to do so, in the latter instance

also expressing the belief that he had no good faith basis to

object. Indeed, counsel affirmatively stated he had no ob-

jection after the government asked a series of familiar

foundational questions. These questions, combined with the

court’s query, served to put counsel on notice that now was

the time to raise foundational objections. He expressly

declined to do so. Neither exchange with the court (during

trial or at sentencing) could be interpreted as an accidental

or negligent omission of an objection, or an apparently

12 No. 03-2413

inadvertent failure to assert a right in a timely fashion. We

therefore find that Murry waived his objections to the

admissibility of Exhibits 222 and 223, and we decline to

review the district court’s decision. Redditt, 381 F.3d at 602;

Pittman, 319 F.3d at 1012.

C.

Murry next argues that the district court plainly erred

when it allowed Robert Schumann, the government’s finger-

print expert, to testify to the contents of Home Depot and

Sam’s Club business records. According to Murry,

Schumann testified about the contents of Exhibits 182, 212,

214 and 216 as business records of Home Depot and Sam’s

Club. Exhibit 182 is a Home Depot customer pick-up

confirmation slip signed by Horatio Jones to acknowledge

receipt of a load of hardwood flooring and a power tool.

Exhibit 212 is a Sam’s Club credit card receipt for general

merchandise in the amount of $1911.26. Exhibit 214 is a

Sam’s Club credit card pre-print checklist together with a

photocopy of Darnell Murry’s State of Illinois identification

card. Exhibit 216 is another Sam’s Club credit card receipt

for general merchandise in the amount of $330.82. Murry

complains that Schumann was not qualified to lay a foun-

dation for these documents as business records. He further

contends that Exhibits 212 and 216 were never authenti-

cated. According to Murry, the government never presented

any admissible evidence to support a finding that Exhibits

212 and 216 were actually receipts from Sam’s Club, and

never presented a chain of custody for these exhibits.

At trial, Schumann identified these and other exhibits as

documents he had been given to test for fingerprints. Tr. at

259. He testified that for each of these four exhibits, he

matched the documents to a list of evidence provided to him

by the Secret Service, checking the Secret Service’s descrip-

tion of the document to the actual document before testing

No. 03-2413 13

for fingerprints. The government points out that these four

exhibits were simply originals of photocopied exhibits that

had already been admitted into evidence without objection

as business records of Sam’s Club and Home Depot. When

the government moved to admit Exhibits 182, 212, 214 and

216 into evidence (with a larger group of documents exam-

ined by Schumann), the court inquired whether Murry’s

attorney had any objections to admissibility and he replied,

“No, your Honor.” Once again, after a series of questions

that related to foundation, the court solicited objections and

Murry’s attorney expressly asserted he had no objection to

admissibility. Moreover, photocopies of these exhibits had

already been admitted into evidence without objection. As

with the other instances, we find that Murry waived his

objection to the admission of these exhibits. Our review is

therefore precluded.

As for the challenges to Schumann’s testimony about

the content of these exhibits, Murry failed to object to this

testimony and we therefore review its admission for plain

error only. The transcript reveals that the focus of

Schumann’s testimony was not on the content of the doc-

uments but on the presence of Murry’s fingerprints on the

papers. Schumann’s testimony about the content of the ex-

hibits was limited to comparing the documents to the Secret

Service’s list describing each piece of evidence to verify that

he was reviewing the correct exhibits. He simply verified

that he was testing the right piece of paper. We find no plain

error in the district court’s admission of this testimony.

D.

Finally, we consider Murry’s argument regarding the

amount of restitution ordered by the district court at sen-

tencing. Murry contends that the court lacked the authority

to order restitution for uncharged conduct. At trial, Murry

argues, the government proved GE Capital’s losses to be

14 No. 03-2413

$240,968.75. At sentencing, when ordering restitution, the

district court added on to that figure an amount repre-

senting losses from other conduct, some during the period

covered by the indictment and some from outside the time

limits of the indictment. According to Murry, restitution

ordered under the Mandatory Victim’s Restitution Act

(“MVRA”) is limited to losses caused by the charged conduct.

Murry insists that the district court was thus limited in

ordering restitution to the losses proved at trial. According

to Murry, any other losses were not part of the offense of

conviction and the district court lacked authority to order

restitution of those amounts.

The government does not contest a limited modification

of the restitution order. Murry was charged in a two-count

indictment, the first count for interstate transportation of

goods obtained by fraud, and the second count for access

device fraud. Count Two specifically charged:

From in or about April 2002 until on or about

October 31, 2002, at Chicago, in the Northern District

of Illinois, Eastern Division, and elsewhere, DARNELL

MURRY, defendant herein, did knowingly and with in-

tent to defraud use and cause to be used one or more

unauthorized access devices, and by such conduct ob-

tained things of value aggregating $1,000 or more during

a one year period, thereby affecting interstate com-

merce[.]

R. 40. The $240,968.75 proved at trial related to transac-

tions occurring between March 28, 2002 and October 31,

2002. At sentencing, a summary chart prepared by GE Capital

and provided by the government showed $654,046.72 in

actual losses between December 29, 2001 and October 31,

2002. At the time of his arrest, Murry possessed $3001.50,

which the district court ordered applied to restitution at

sentencing. The net restitution ordered at sentencing was

No. 03-2413 15

$647,054.22.2 The government now acknowledges that

$88,888.11 of those losses related to transactions occurring

prior to April 2002, the date charged in the indictment.

Without conceding error, the government waives any argu-

ment about that amount of restitution for the purposes of

the appeal. The government asks that we remand the case

so that the district court may adjust the amount of restitu-

tion downward by $88,888.11.

At sentencing, Murry did not object to the amount of the

restitution ordered. We therefore review this claim for plain

error. United States v. Randle, 324 F.3d 550, 555 (7th Cir.

2003). The district court ordered restitution pursuant to the

MVRA. See 18 U.S.C. §§ 3663A and 3664. Section 3664

provides the procedure for issuance and enforcement of an

order of restitution. The first step is for the district court to

order the probation officer to obtain a complete accounting

of the losses to each victim of the crime. 18 U.S.C. § 3664(a).

Section 3664 also supplies the procedure for resolving

disputes about the appropriate amount of restitution to be

ordered:

Any dispute as to the proper amount or type of restitu-

tion shall be resolved by the court by the preponderance

of the evidence. The burden of demonstrating the amount

of the loss sustained by a victim as a result of the of-

fense shall be on the attorney for the government.

2

Both the text of the PSR and the summary chart attached to it

list the amount of the actual loss as $654,046.72. For reasons not

apparent from the record, the district court stated that the PSR

showed actual loss in the amount of $650,046.72, exactly $4000

less than actually reported in the PSR. When the district court

calculated the amount of restitution at the sentencing hearing, the

court started with the lower figure ($650,046.72) and subtracted

the $3001.50 recovered from the defendant to reach the final

amount ordered for restitution.

16 No. 03-2413

18 U.S.C. § 3664(e). The plain language of this provision

belies Murry’s claim that the district court was limited to

the amount of loss proved at trial in determining the

amount of restitution, and we reject that reading of the

MVRA. See United States v. Acosta, 303 F.3d 78, 89 (1st Cir.

2002) (finding no plain error where the district court

included as restitution amounts from transactions sup-

pressed at trial but still part of the offense of conviction).

Although the court is not limited to losses proved at trial,

restitution is limited to the losses caused by charged

conduct, i.e. the offense of conviction. Randle, 324 F.3d at

556; United States v. Scott, 250 F.3d 550, 553 (7th Cir. 2001).

Restitution may not be ordered for relevant conduct. Scott,

250 F.3d at 553; United States v. Menza, 137 F.3d 533, 537

(7th Cir. 1998). In Murry’s case, the indictment spells out

the charged conduct broadly, including multiple uses of un-

authorized access devices between April 2002 and October

31, 2002. The Presentence Investigation Report (“PSR”) sets

forth the losses proved at trial as $240,968.75. Citing the

additional summary charts provided to the government by

GE Capital during the sentencing phase, the PSR states,

“According to the government, the total actual loss combined

with the relevant conduct is $654,046.72, and the intended

loss was $680,650.00.”3 The probation officer thus recom-

mended that the court order restitution in the amount of the

actual losses, $654,046.72. At the sentencing hearing, the

3

Some of Murry’s transactions were rejected by the stores before

he was able to pick up the merchandise, accounting for some of

the difference between the actual and intended losses. The gov-

ernment returned to the stores merchandise seized at the time of

the arrest, accounting for the rest of the difference between actual

and intended losses. Based on the government’s representations

and the evidence provided by GE Capital, the probation officer

determined the value of the loss for sentencing purposes to be

$680,650.00.

No. 03-2413 17

district court stated, “The restitution amount originally in the

presentence report was $650,046.72. However, that will be

reduced because of the application of the seized funds to the

restitution amount. What is the balance then due?” The

probation officer responded, “$647,045.22.” Sentencing Tr. at

26. As we noted above, the record does not reveal the reason

for the discrepancy between the actual loss figure given in

the PSR and the district court’s representation of that

number at sentencing; the numbers differ by exactly $4000.

In any case, the district court clearly was basing the

amount of restitution on the recommendation in the PSR.

That recommendation was in turn based on the charts

provided by GE Capital.

The probation officer characterized the $654,046.72

total as representing “total actual loss combined with the

relevant conduct.” The PSR does not specify what part of

that loss was caused by the offense of conviction and what

part was caused by relevant conduct. The government has

already waived any argument relating to $88,888.11 in

actual losses sustained before the time period covered by

the indictment. It is unclear from the PSR how much of the

remaining loss calculation arises from the offense of

conviction and how much can be attributed to relevant

conduct, and restitution may not be ordered for relevant

conduct. We therefore vacate the restitution award and

remand to the district court to determine the amount of the

loss that may be attributed to the charged conduct, and to

adjust the amount of restitution accordingly. Given the

government’s waiver, the amount of restitution should be

reduced by $88,888.11 and then further reduced by any

amount that the court concludes was due to relevant conduct

rather than the offense of conviction. Finally, the court on

remand will have the opportunity to clarify whether the

starting figure for actual loss should be $654,046.72 or

$650,046.72.

AFFIRMED IN PART, VACATED and REMANDED IN PART.

18 No. 03-2413

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-3-05