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United States v. Boley

United States District Court, D. Maine

November 4, 2019

UNITED STATES OF AMERICA
v.
BRYAN BOLEY

          PRESENTENCE ORDER ON APPLICATION OF SENTENCING ENHANCEMENT FOR RELOCATION OF A FRAUDULENT SCHEME PURSUANT TO UNITED STATES SENTENCING GUIDELINE § 2B1.1(b)(10)(A)

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The United States of America seeks application of a two-level sentencing enhancement for relocation of a fraudulent scheme under United States Sentencing Guideline (U.S.S.G. or Guidelines) § 2B1.1(b)(10)(A) to a defendant being sentenced on various counts related to access device fraud. Based on the description of the offense conduct in the Presentence Investigation Report, the Prosecution Version of the Offense, and the Government's memorandum, the Court concludes that the Government failed to demonstrate that the defendant relocated his scheme, which was only ever located in Maine, or that the defendant's alleged relocation was for the purpose of evading law enforcement. The Court declines to apply the relocation sentencing enhancement.

         I. BACKGROUND

         A. Procedural Background

         On January 24, 2019, the United States of America (Government) filed a criminal complaint against Bryan Boley. Criminal Compl. (ECF No. 1). Also on January 24, 2019, the Magistrate Judge issued an arrest warrant for Mr. Boley. Arrest Warrant (ECF No. 4). On January 29, 2019, the Magistrate Judge held an initial appearance for Mr. Boley. Min. Entry for Proceedings Held Before Magistrate Judge John H. Rich III (ECF No. 8).

         The Grand Jury issued a six-count indictment against Mr. Boley on March 1, 2019. Indictment (ECF No. 20).[1] The indictment alleged: (1) Count One, a conspiracy to use a counterfeit access device from July 31, 2018 until January 23, 2019; (2) Count Two, use or attempted use of a counterfeit access device between July 31, 2018 and August 12, 2018; (3) Count Three, use or attempted use of a counterfeit access device between September 2, 2018 and September 7, 2018; (4) Count Four, use or attempted use of a counterfeit access device between December 16, 2018 until December 26, 2018; (5) Count Five, possession of at least fifteen counterfeit access devices between an unknown date and January 23, 2019; and (6) Count Six, access device fraud - production or possession of device making equipment between an unknown date and January 22, 2019. Id. at 1-4. The indictment also contained a forfeiture allegation. Id. at 4-5. On May 16, 2019, Mr. Boley pleaded guilty to all counts of the indictment and consented to the forfeiture. Min. Entry for Proceedings Held Before Judge John A. Woodcock, Jr. (ECF No. 60). There is no plea agreement.

         On September 6, 2019, the Government filed a memorandum seeking application of a sentencing enhancement for relocation of a fraudulent scheme to Mr. Boley. Gov't's Mem. in Support of Sentencing Enhancement for Relocation of a Fraudulent Scheme (ECF No. 117) (Gov't's Mem.). On September 20, 2019, Mr. Boley filed a response. Resp. to Gov't Mem. in Support of Sentencing Enhancement for Relocation of Scheme (ECF No. 119) (Def.'s Resp.). On September 27, 2019, the Government filed a reply. Gov't's Sentencing Mem. and Reply to Def.'s Resp. to Gov't's Mem. in Support of Sentencing Enhancement for Relocation of a Fraudulent Scheme at 8-11 (ECF No. 127) (Gov't's Reply). On October 21, 2019, the Government filed a supplemental sentencing memorandum that included a discussion of the relocation enhancement. Gov't's Suppl. Sentencing Mem. at 4-5 (ECF No. 136) (Gov't's Suppl. Mem.). On October 28, 2019, Mr. Boley filed a supplemental sentencing memorandum that included a discussion of the relocation enhancement. Def.'s Suppl. Sentencing Mem. (ECF No. 141) (Def.'s Suppl. Mem.).

         B. Facts [2]

         From July 31, 2018 to January 23, 2019, Mr. Boley resided in Maryland or the Washington, D.C. area. Am. Pros. Ver. at 1; PSR ¶ 51. Mr. Boley has an uncle who lives in Maine, with whom he stayed one night. PSR ¶ 8-9. Mr. Boley, along with two other members of the conspiracy, “traveled to Maine to commit access device fraud.” Am. Pros. Ver. at 1. When Mr. Boley's hotel room in Maine was searched pursuant to a warrant on January 22, 2019, his room contained:

approximately 85 plastic cards, including 20 unopened gift cards; a credit card reading and writing machine; a white Alcatel cell phone; a dell laptop; Greyhound bus tickets from Washington, D.C., to Boston, MA, and a receipt and itinerary from Boston, MA, to Burlington, VT; and a collection of approximately 25 receipts showing multiple purchases or attempted purchases of gift cards and other items in Maine, as well as a receipt from Vermont, two receipts from Massachusetts, and a receipt from Washington, D.C.

Id. at 3-4. The PSR reflects that Mr. Boley and his co-conspirators committed fraud in various locations in southern Maine, including stores located in Auburn, Lisbon Falls, Lewiston, South Portland, and Topsham. PSR ¶¶ 8-11; Gov't's Mem., Attach. 1. Additionally, a review of the laptop found in Mr. Boley's hotel room has revealed “51 additional cards, 38 . . . from various locations in Maine, 6 . . . from Massachusetts, 3 . . . from Virginia, 2 . . . from Maryland, and 1 each from Vermont and Wisconsin.” Gov't's Suppl. Mem. at 4.

         II. POSITIONS OF THE PARTIES

         A. Government's Motion

         The Government supports application of the relocation enhancement, arguing this case is more like cases where courts have applied the enhancement than those where they have not. Gov't's Mem. at 4. Mr. Boley “and his co-conspirators resided in Maryland, in the greater D.C. area, but came several states north to Maine to commit access device fraud.” Id. at 5. Additionally, “[w]hen [Mr. Boley's] hotel room was searched, there were bus tickets found there reflecting travel from Washington, D.C., to Boston, MA, and travel from Burlington, VT, to Boston, MA . . ..” Id. Twenty-five receipts were also found, with one from Vermont “reflect[in]g the purchase of clothing at the University Mall in Burlington, ” one from Brookline, Massachusetts for an item valued at approximately $5 at a CVS, and one from Washington, D.C. “reflect[ing] the purchase of a money order.” Id. at 5 n.2. More relevantly, one receipt found from an Old Navy in Everett, Massachusetts, “reflect[ed] the purchase of two gift cards, each valued at $50.00-in line with [Mr. Boley's] other purchases of gift cards in Maine.” Id. The Government also points out that “[r]eceipts and police reports reflect that [Mr. Boley] and his co-conspirators committed fraud in a variety of locations in southern Maine, including at least various stores located in Auburn, Lisbon Falls, Lewiston, South Portland, and Topsham . . ..” Id. at 5.

         The Government contends this pattern of behavior is most like that in United States v. Thung Van Huynh, 884 F.3d 160 (3d Cir. 2018), a case involving purchases of jewelry in sixteen states that would then be shipped back to California for sale, although it acknowledges that “the only available evidence of the conspiracy's activity relates to various locations in Maine.” Gov't's Mem. at 5; Thung Van Huynh, 884 F.3d at 163. The Government says that the recovered receipts and bus tickets suggest that the scheme “extended into at least Massachusetts . . . and possibly Vermont, ” constituting “a ‘relocation' of the scheme from [Mr. Boley's] state of residence, even if he never performed any fraudulent activity in [his home state of] Maryland.” Id. The Government differentiates this case from United States v. Hines-Flagg, 789 F.3d 751 (7th Cir. 2015), because there, the defendant operated in four contiguous states, and here, Mr. Boley's area of operation is geographically removed from Maryland. Gov't's Mem. at 6.

         The Government also points out that “[Mr. Boley] has no apparent connection to Maine apart from his uncle, with whom he only stayed one night, ” id., and argues that this case is similar to United States v. Thornton, 718 Fed. App'x 399 (6th Cir. 2018), a case involving a bank fraud conspiracy reaching across thirteen states and including “approximately 1, 400 counterfeit checks and almost $3 million in intended loss, ” id. at 400, in that “the evidence supports that the defendants in this case operated the scheme as they traveled.” Gov't's Mem. at 7. The Government contends that “Maryland or the D.C. area [did not] serve[] as a singular ‘hub'” because “all essential aspects of the scheme . . . were conducted in Maine . . ..” Id. at 7.

         B. Bryan Boley's Opposition

         Mr. Boley argues that this case is much more like Hines-Flagg, as “[t]he facts support a finding that Mr. Boley engaged in fraudulent activity in Maine and Maine alone” because the Government has not presented evidence “that Mr. Boley was actually engaged in fraudulent activity in Maryland, Massachusetts, or Vermont . . ..” Def.'s Resp. at 1. Mr. Boley points out that the Guidelines refer to relocation of the scheme, not the defendant, id. at 2 (quoting Hines-Flagg, 789 F.3d at 755), and that Mr. Boley “has . . . had a fairly transient existence, ” such that “it would not be unusual for Mr. Boley to visit any number of states, ” including Maine, where he has an uncle. Id. Mr. Boley argues that “[i]n order for a fraudulent scheme to be relocated, it logically need have occurred in more than one location, ” and here, the Government has presented no evidence beyond its speculative inference based on a small number of receipts that that is true. Id. at 2-3.

         Mr. Boley differentiates Thung Van Huynh and United States v. Savarese, 686 F.3d 1 (1st Cir. 2012), [3] pointing out that in those cases, the Government provided evidence that “the defendants did engage in fraudulent activity in multiple locations, moving their schemes from one place to the next.” Def.'s Resp. at 3. In Thung Van Huynh, the fraudulent purchases were made at jewelry stores throughout the country, and in Savarese, visits were made to 150 fitness clubs across the country. Id. If such a pattern existed, Mr. Boley argues, an inference of relocation would be easy, but the Government has not established one. Id.

         Additionally, Mr. Boley argues that, should the Court find that Mr. Boley did relocate his scheme, the Government has not met its burden to show that the purpose of his relocation was to evade law enforcement, as “the Government relies on thin evidence and weak logic in a case where no evidence suggests that Mr. Boley was relocating for this purpose.” Id. at 4. Here, Mr. Boley asserts, “there is no evidence of fraudulent activity in other locations, simply a bus ticket, a few receipts, and a suggestion by the Government that Mr. Boley's travel was necessarily part of his fraudulent scheme.” Id. Mr. Boley adopts the reasoning of the Hines-Flagg Court to argue that “application of [the relocation] enhancement requires more than just the operation of a multijurisdictional scheme in order to reduce the chances of detection.” Id. at 4-5 (quoting Hines-Flagg, 789 F.3d at 756). Mr. Boley points out that in Thung Van Huynh and other cases where courts have inferred a purpose of evading law enforcement, there were additional relevant factors. Id. at 5. In Thung Van Huynh, for instance, the defendant did not return to two particular states after he was questioned there. Id. (citing Thung Van Huynh, 884 F.3d at 163). Here, “Mr. Boley attempted multiple purchases at the same Rite-Aid in the Lewiston ...


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