Argued and Submitted May 8, 2013—San Francisco, California
Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding D.C. No. 3:10-cr-00547-CRB-1
Marcus S. Topel (argued), Daniel F. Cook, and Jacob N. Foster, Kasowitz, Benson, Torres & Friedman LLP, San Francisco, California, for Defendant-Appellant.
Merry Jean Chan (argued) and Barbara J. Valliere, Assistant United States Attorneys; Melinda Haag, United States Attorney, San Francisco, California, for Plaintiff-Appellee.
Before: William A. Fletcher, Ronald M. Gould, and Morgan Christen, Circuit Judges.
The panel affirmed the district court's application of a sentencing enhancement under U.S.S.G. § 2B1.1(b)(9)(A) for an offense involving "a misrepresentation that the defendant was acting on behalf of a charitable organization . . ." in a case in which the defendant induced patrons of a charitable organization to purchase his shares in a for-profit company by misrepresenting that the value of the shares would soon skyrocket, enabling the patrons to make large charitable contributions.
The panel held that the applicability of the enhancement does not change because the defendant purported to act in the interest of the charitable organization but not as its agent or representative. The panel added that it is also not significant that the defendant's investors may have been motivated, in part, by a desire to profit personally. The panel explained that the defendant's conduct qualifies for the enhancement because, by presenting the investment opportunity as his means of donating to the charitable organization, the defendant misrepresented that he was acting "to obtain a benefit on behalf of" the organization.
CHRISTEN, Circuit Judge.
Samuel Cohen induced patrons of a charitable organization to purchase his shares in a for-profit company by misrepresenting that the value of the shares would soon skyrocket, enabling the patrons to make large charitable contributions. A federal jury found Cohen guilty of fifteen counts of wire fraud in violation of 18 U.S.C. § 1343, eleven counts of money laundering in violation of 18 U.S.C. § 1957, and three counts of tax evasion in violation of 26 U.S.C. § 7201. The district court applied a two-level upward enhancement to Cohen's Guidelines range under U.S. Sentencing Guidelines § 2B1.1(b)(9)(A) because his offense involved "a misrepresentation that the defendant was acting on behalf of a charitable . . . organization." The question in this appeal is whether the district court correctly applied this enhancement. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
Samuel Cohen posed as a wealthy philanthropist interested in donating sixty million dollars to charitable causes. He arranged a meeting with the Vanguard Public Foundation, a charitable organization, on the pretext that he was considering making a donation. But instead of donating to Vanguard, Cohen extended an offer to the Vanguard Foundation's donors to sell them some of his shares in Ecast, Inc., a company he co-founded. Cohen represented that Ecast was about to be acquired by Microsoft and that the value of Ecast shares would soon jump up to the Microsoft price of $30 per share. ...