United States v. Kirilyuk

          ORDER OVERRULING DEFENDANT'S OBJECTIONS TO THE PRESENTENCE REPORT

          GARLAND E. BURRELL, JR. SENIOR UNITED STATES DISTRICT JUDGE

         Defendant Ruslan Kirilyuk objects to findings in the Presentence Report (“PSR”). The United States opposes the objections.

         Kirilyuk objects to paragraph 7 in the PSR arguing “[t]here is no evidence that [he] opened a fake American Express merchant account in the name of [L.D.] using the high school transcript that was introduced at trial.” Def's Obj. at 5:7-9. The United States rejoins:

To the extent Kirilyuk argues the evidence did not show he personally took all of the steps to steal and misuse L.D.'s identity, the government agrees. However, Kirilyuk was convicted beyond a reasonable doubt by the jury for his participation in this unlawful use of L.D.'s personally identifying information. This finding was well supported by, among other pieces of evidence, the recovery of Kirilyuk's fingerprint from L.D.'s student transcript that was used to open the merchant account. Moreover, to the extent that others also assisted in the crime, Kirilyuk is responsible for the reasonably foreseeable acts taken by his coconspirators in furtherance of the criminal agreement. See, e.g., 18 U.S.C. § 2; Ninth Cir. Crim. Jury Inst. 5.1; U.S.S.G. § 1B1.3. Therefore, while Kirilyuk was not the only person who was involved in the scheme, the PSR correctly states that he used the name and social security number of L.D. to open the account. If any change is to be made to the language in the PSR, the government suggests that it be revised to state that Kirilyuk and his co-defendants used the name and social security number of L.D.”

Gov't's Sen. Memo and Response to Objs. at 3:17-28, ECF 385.

         The United States is correct. This objection is overruled.

         Kirilyuk objects to paragraph 17 in the PSR arguing he never made the statement attributed to him in the paragraph. The government's following response to this objection accurately states the evidentiary record concerning the objection: Kirilyuk “objects to a statement made in a chat by his coconspirators. This chat was a contemporaneous statement made in the course of the conspiracy by Kirilyuk's coconspirators. It was . . . admitted at trial and it belongs in the PSR because it describes Kirilyuk's interactions with his coconspirators. [The statement] is very probative of Kirilyuk's position as the leader of the fraud scheme whose leadership style was not always appreciated by his coconspirators.” Sentencing Memor. and Resp. to Objs. at 4:28, 5:1-2 and 4-5, ECF 385. Therefore, the objection to paragraph 17 is overruled.

         Kirilyuk objects to the $59, 956, 500 intended loss amount in paragraph 29 of the PSR. However, clear and convincing evidence in the trial and sentencing records supports this paragraph. The evidentiary record includes the following findings:

A Federal Bureau of Investigation (FBI) investigation revealed a criminal network which operated 71 false online businesses to commit credit card fraud from 2011 to 2014. The investigation identified Mihran Melkonyan, Rouslan Akhmerov, Aleksandr Maslov, and Ruslan Kirilyuk as conspirators. Melkonyan, Akhmerov, Maslov, and Kirilyuk operated the fraudulent online businesses by submitting fraudulent charges to stolen American Express credit card and debit card accounts. The FBI found that approximately 119, 913 stolen American Express credit cards or debit cards were used, which resulted in 190, 321 transactions being submitted to American Express. Each transaction usually was within the price range of $15 to $30. American Express approved approximately 84, 032 of these charges, which resulted in $1, 418, 959 in fraudulent charges being approved, but the intended loss was more than $3.4 million.

Paragraph 5 in the PSR at 5.

         Further, the method used to calculate the intended loss stated in paragraph 29 of the PSR is supported by the advisory guidelines; specifically, “[e]ach device is valued at $500.” PSR at paragraph 29; See United States v. Dobadzhyan, 677 Fed.Appx. 454, 455(9th Cir. 2017) (“In cases, such as this one, involving altered or counterfeit instruments, U.S.S.G. § 2B1.1(b)(1) sets increases in criminal offense levels based on the amount of loss [; and a] court may impose a charge of $500 per counterfeit access device number. U.S.S.G. § 2B1.1, cmt. n.3(F)(i); United States v. Popovski, 872 F.3d 552, 553, (7th Cir. 2017) cert. denied 138 S.Ct. 1017 (2018)(“Application Note 3(F)(i) to § 2B1.1 provides: ‘In a case involving any counterfeit access device or unauthorized access device, loss includes any unauthorized charges made with the counterfeit access device or unauthorized access device and shall be not less than $500 per access device.'”).

         The United States is correct in the following assertions in its brief: “[The intended] loss amount was shown through a variety of links, including transaction signatures, items recovered in search warrants, linked bank accounts, common IP addresses, witness testimony, and other evidence. Corroborated testimony further established that Kirilyuk was a knowing participant in [the] full scheme.” United States' Sentencing Memor. and Resp. to Objs. at 5:12-15.

         Kirilyuk's objection to paragraph 29 is overruled.

         Kirilyuk also objects to paragraph 30 in the PSR arguing it erroneously contains an increase in his sentencing offense level “for [the] number of victims [, and that the] ‘victim impact', paragraph makes it clear that only AMEX suffered any actual loss. AMEX made all cardholders whole. For the purposes of this adjustment, ‘victim' is a term of art which means a person who has suffered any part of ‘actual loss.'” Def.'s Obj. at 14:12-14, ECF 388. The Ninth Circuit states in United States v. Pham, 545 F.3d 712, 719 (9th Cir. 2008) (internal quotations omitted): “there may be situations in which a person could be considered a victim under the Guidelines even though he or she is ultimately reimbursed.” This ...