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United States v. Delima

United States Court of Appeals, First Circuit

March 26, 2018

MALIK DELIMA, Defendant, Appellant.


          Peter J. Cyr and Law Offices of Peter J. Cyr for appellant.

          Michael J. Conley, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

          Before Lynch, Circuit Judge, Souter, Associate Justice, [*] and Kayatta, Circuit Judge.

          LYNCH, Circuit Judge.

         Malik Delima pleaded guilty in 2016 to conspiring to commit access-device fraud after court-approved wiretaps, authorized during a separate investigation into a Vermont-based drug trafficking organization, exposed Delima's involvement in a scheme to produce and make purchases with fraudulent credit cards. Delima appeals the district court's denial of his motion to suppress the wiretap evidence. He also challenges his sentence on procedural and substantive reasonableness grounds. We affirm.

         I. Background

         A. Facts

         In 2014, federal law enforcement agents in Vermont began an investigation into a drug trafficking organization that transported cocaine and heroin from New York to Vermont and Maine. As part of that investigation, the agents applied for and obtained three separate wiretap authorizations from the district court in Vermont. The wiretaps targeted four phones used by Gary Delima and other members of the drug trafficking group. Each of the three wiretap applications was supported by affidavits, on personal knowledge, from Drug Enforcement Administration agent Timothy Hoffmann, who participated in the investigation. Through the wiretaps, the agents learned that Gary Delima and his brother Malik Delima ("Delima"), the defendant in this case, were at the center of another criminal scheme -- one involving the manufacturing and use of fraudulent credit cards.

         On March 24, 2015, law enforcement agents executed a search warrant at the apartment of one of Malik Delima's associates in Auburn, Maine. They recovered various equipment used to manufacture fraudulent credit cards, including a laptop computer, a credit-card-embossing machine (a "tipper"), a credit card laminator, a magnetic-strip card reader, approximately 210 prepaid gift cards, and approximately 150 credit and debit cards. They also seized a laptop that contained text files with hundreds of stolen credit card numbers. In total, 2, 326 unique credit, debit, and gift card numbers were seized from the physical cards, the laptop's files, and email accounts associated with the laptop.

         B. Presentencing Proceedings

         Malik Delima moved to suppress all evidence obtained through the wiretaps on the ground that the government had failed to demonstrate necessity. The district court denied the request on June 21, 2016.

         On July 22, 2016, Delima pleaded guilty to one count of conspiring to commit access-device offenses in violation of 18 U.S.C. §§ 1029(a)(1), (a)(3), (a)(4) and (b)(2).[1] Pursuant to Federal Rule of Criminal Procedure 11(a)(2), Delima conditioned his guilty plea on the reservation of his right to appeal the district court's denial of his motion to suppress the wiretap evidence.

         The probation office filed a presentence investigation report ("PSR"), which stated that Delima, along with his brother Gary, orchestrated the credit card scheme. It referred to phone calls showing that the two brothers oversaw nine other individuals who assisted in the execution of the scheme. The PSR also noted that, based on the 2, 326 card numbers recovered from the seizure, and the formula specified in U.S.S.G. § 2B1.1, the total loss amount was $1, 163, 000 (2, 326 cards multiplied by $500 per card).

         The PSR calculated Delima's base offense level to be six. It then recommended a fourteen-level enhancement because the estimated loss was more than $550, 000 and less than $1, 500, 000, pursuant to U.S.S.G. § 2B1.1(b)(1)(H); a two-level enhancement because the offense involved possession of device-making equipment, pursuant to § 2B1.1(b)(11)(B)(i); a two-level enhancement because there were at least ten victims, pursuant to § 2B1.1(b)(2)(A)(i); a four-level enhancement because Delima was an organizer and/or leader of a criminal enterprise with five or more participants, pursuant to § 3B1.1(a); and a three-level reduction for Delima's acceptance of responsibility, pursuant to § 3E1.1. As such, the PSR determined that Delima had a total offense level ("TOL") of twenty-five.

         Because Delima had a number of prior convictions, the PSR calculated that he had a criminal history category ("CHC") of IV. Based on a TOL of twenty-five and a CHC of IV, the applicable guideline range was 84-105 months. The PSR adjusted the range to 84-90 months because there was a statutory cap of ninety months' incarceration. See 18 U.S.C. § 1029(b)(2). Delima objected to three aspects of the PSR: the estimated loss amount, his role enhancement, and the two criminal history points associated with his Youthful Offender conviction.

         C. Loss-Amount Hearing and Sentencing Hearing

         The district court held an evidentiary hearing to determine the loss amount on December 22, 2016. Delima and two of his codefendants were present at the hearing. At the outset, the government introduced, and the district court admitted without objection, a spreadsheet of the fraudulent credit card numbers that the government contended was a "conservative estimate" of the numbers attributable to the defendants, a summary narrative chronology, a transcript of jail calls, and transcripts of the wiretapped calls.

         The government then called Secret Service Agent Matthew Fasulo to testify. Fasulo, who joined the Delima investigation in March 2015, described what he understood to be the mechanics of the credit card scheme: the conspirators purchased stolen credit card numbers from online sources, used specialized equipment to manufacture fraudulent credit cards, and recruited women to use the fraudulent credit cards to purchase goods and gift cards at retailers. Fasulo then testified that, based on the government's spreadsheet, approximately 1, 024 of the credit card numbers recovered from the seizures in the apartment were tied to the conspiracy in the month of March 2015 alone.

         Fasulo explained that, based on his review of the transcripts of the wiretapped calls, he believed that the scope of the criminal scheme extended beyond Maine to several other states, including Pennsylvania, Massachusetts, and New York. Fasulo discussed a number of the wiretapped calls in depth, including a call in which Delima instructed Gary to order 100 unique credit card numbers for $1, 500; a call showing that Delima and his coconspirators had been ordering card numbers even before they had moved their operation to Maine; several calls in which Delima discussed recruiting women to make purchases with the fraudulent credit cards; a call ...

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