United States of America v. Ned Roscoe

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NED ROSCOE,
Defendant - Appellant.
Nos. 12-10108, 12-10335
D.C. No. 5:07-cr-00373-RMW-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted October 9, 2013
San Francisco, California
Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.
Ned Roscoe was convicted of bank fraud and now contests the validity and
amount of the district court’s restitution order.
1. Roscoe claims that the restitution order is unconstitutional under Apprendi
v. New Jersey, 530 U.S. 466 (2000), because it is based on facts found by the judge
FILED
OCT 17 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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rather than the jury. However, this court rejected that argument in United States v.
Green. 722 F.3d 1146, 1151 (9th Cir. 2013).
2. Roscoe challenges the amount of restitution the court ordered him to pay.
The Mandatory Victims Restitution Act requires a defendant to “make restitution
to the victim of the offense” in an amount equal to the value of the property lost. 18
U.S.C. § 3663A(a)(1), (b)(1). Thus, “[t]he government has the burden of
establishing by a preponderance of the evidence that the victim’s damages were
caused by the conduct of which defendant was convicted.” United States v.
Peterson, 538 F.3d 1064, 1074-75 (9th Cir. 2008) (quotation marks omitted).
A district court “has broad discretion in ordering restitution. A restitution
order is reviewed for abuse of discretion, provided it is within the bounds of the
statutory framework. The court’s valuation methodology is reviewed de novo. The
factual findings supporting a restitution order are reviewed for clear error.” United
States v. Berger, 473 F.3d 1080, 1104 (9th Cir. 2007) (internal citations omitted).
The district court did not abuse its discretion in ordering Roscoe to pay
approximately $10.2 million in restitution. From May to November 2003, Roscoe
signed and transmitted fraudulent inventory reports to support the loan obligation
of Cigarettes Cheaper! (CC). (While Roscoe’s father was CC’s CEO, Roscoe
oversaw CC’s day-to-day operations.) As a result, Comerica permitted CC to
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maintain a $21 million line of credit over that period. However, if inventory had
not been fraudulently reported, CC would have only have been eligible for a loan
of approximately $10.3 million. This $10.7 million difference1 was appropriately
used by the district court as the basis for calculating the restitution order under
United States v. Berger. See id. at 1104-07.
The district court accurately viewed the loan arrangement in the aggregate,
id. at 1105, and did not abuse its discretion in attributing the entire overadvance in
loan principal to Roscoe’s fraud, considering each fraudulent inventory report
reinforced to Comerica the incorrect assumption that CC’s inventory was valued as
reported. Further, even assuming Comerica’s prospects of recovering the
fraudulently obtained portion of the loan were slim, that does not reduce the loss
attributable to Roscoe’s fraud. Id. at 1107.
Therefore, the district court’s restitution order is AFFIRMED.
1This $10.7 million loss is the difference between the actual loan, $21
million, and the amount the loan should have been absent Roscoe’s fraud, $10.3
million. The district court began with the $10.7 million amount, deducted
payments already made, then added interest, to arrive at the approximately $10.2
million figure in the district court’s final order.
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