February 7, 2018
from the United States District Court for the Northern
District of Indiana, Hammond Division. No. 2:12-cr-00175 -
Philip P. Simon, Judge.
Bauer, Rovner, and Sykes, Circuit Judges.
October 23, 2013, a jury convicted Adrian and Daniela
Tartareanu of wire fraud in violation of 18 U.S.C. §
1343 and conspiracy to commit wire fraud in violation of 18
U.S.C. § 1349. They appealed their original sentences,
and we remanded for resentencing. United States v.
Litos, 847 F.3d 906 (7th Cir. 2017). On remand, the
district court sentenced Adrian to 36 months'
imprisonment, Daniela to 21 months' imprisonment, and
imposed a $30, 000 fine on each of them. In this appeal, the
Tartareanus challenge the district court's intended loss
calculation under U.S.S.G. § 2B1.1, as well as its
decision to deny Daniela a minor role reduction under
U.S.S.G. § 3B1.2. We affirm.
2005, Adrian and co-defendant Minas Litos established a
company called Red Brick Investment Properties, through which
they intended to purchase, rehabilitate, and resell homes.
Daniela, the only employee with a real estate license, served
as Red Brick's office manager. The group sought out
buyers who either did not have good enough credit or enough
money for a down payment (or both) and assisted them in
applying for mortgage loans. Between June 2007 and March
2009, Red Brick sold 45 houses.
Brick provided the buyers with the down payment funds for
each sale, but the loan applications falsely stated that the
buyers were putting up their own money. Litos and the
Tartareanus also assisted the buyers in providing false
information on the applications indicating their
creditworthiness for the loans, including fictitious incomes,
nonexistent bank accounts, and other fake assets. The
Tartareanus attended the closings as the seller's
representatives and signed documents falsely stating that no
portion of the down payments had been paid by the seller or
any other third party.
closing, Red Brick provided the buyers with further
undisclosed payments, which were intended to ensure that the
buyers could make at least two payments before defaulting on
their loans. Red Brick told the buyers that the properties
had renters either present or incoming, though most buyers
ultimately received insufficient rental income to cover their
America provided the loans for 32 of the 45 Red Brick sales,
all of which were processed by loan officer Stepha- nie
Riggs. In March 2008, Bank of America opened an internal
investigation into Riggs' loan files. During the
investigation she acknowledged that it was possible that the
loan applications contained false income and assets, but
denied falsifying any of that information herself. Bank of
America determined there was no conclusive evidence that
Riggs had been involved in any dishonest act, but it fired
her in April 2009, citing a loss of trust and confidence.
four day trial, a jury found the Tartareanus guilty of 16
counts of wire fraud and one count of conspiracy to commit
wire fraud. The district court originally sentenced Daniela
to 21 months' imprisonment, Adrian to 36 months'
imprison- ment, and ordered $893, 015 in restitution to be
paid jointly and severally to Bank of America. On appeal, we
remanded for resentencing, holding that Bank of America was
not a proper victim for purposes of a restitution order
because it was deliberately indifferent to the many warning
signs regarding the borrowers' inability to repay their
loans. Litos, 847 F.3d at 908.
remand, the United States Probation Office filed a revised
Presentence Investigation Report (PSR). It recom- mended a
total loss amount of $1, 835, 861, which was the same as its
original recommendation. The Tartareanus objected in their
sentencing memoranda, arguing that the court should exclude
Bank of America's losses from that calculation because it
was not a "victim" that suffered an actual loss.
The govern- ment contended that Bank of America's losses
qualified as an "intended loss" under U.S.S.G.
§ 2B1.1, and, therefore, were properly included in the
Tartareanus also cited a number of factors they contended
should mitigate their sentences, pursuant to 18 U.S.C. §
3553(a). They noted the lack of threats and violence, that
their fraud involved willing buyers and a complicit bank,
their lack of criminal history, and Adrian's conduct
while imprisoned to that point. They also submitted
affidavits and other documents, which they argued
demonstrated their belief that they were operating within the
bounds of the law. Additionally, Daniela requested a base
offense-level reduction, arguing that she was a minor
participant under U.S.S.G. § 3B1.2.
their resentencing hearings, the district court rejected the
Tartareanus' objections to the loss amount calculation.
It found that this was a case of intended loss, and that
whether Bank of America was complicit in the scheme or not
was irrelevant to the calculation. It determined, therefore,
that the total ...