Saturday, May 28, 2005
A Fourth Circuit opinion in United States v. Blick (here) has a thorough discussion of the appeal waiver related to post-Booker sentencing issues, taking the approach adopted by all other circuits that a waiver of the right to appeal in a plea agreement is enforceable even though the Supreme Court's decision on the Federal Sentencing Guidelines had not been announced. What is more interesting is how Blick ended up in this position. Blick was a principal and one-third owner of a consulting firm, with the responsibility for managing its business affairs. Over the course of about a year, he embezzled approximately $1.4 million, transferring the money overseas. Eventually, the embezzlement caught up with him, and he informed the other owners of the firm and was eventually indicted on wire fraud charges. He repaid about $750,000 of the money he took, and was sentenced for defrauding the firm of $655,000. Why did Blick embezzle all that money? It turns out that he was "assisting" a person in Nigeria to remove $20.5 million from that country into a safe account in Europe. How many of those e-mails do you get a week? It is simply amazing that people actually fall for these scams, although according to Wikpedia (here) this type of advanced fee fraud goes all the way back to the 16th century.
On a side note, Blick had a creative, if less-than-compelling, argument why the actual loss from his scheme should be zero, which could have a significant effect on his sentence. Blick argued that the firm suffered no loss because he owned one-third of it, and his ownership interest exceeded the $655,000 loss, so the "net loss" to the victim -- the consulting firm -- was really zero. In effect, he argued "I stole only my share of the company." Neither the district court nor the Fourth Circuit fell for the argument as easily as he agreed to participate in the Nigerian 419 plan. (ph)