Response to Objections to Presentence Report
Comes now the United States of America, through Ronald G. Woods, the United States Attorney for the Southern District of Texas, by and through the undersigned attorneys, and would show the Court as follows:
A. XXXXX PURCHASED AND SOLD APPROXIMATELY 4,500 VEHICLES DURING THE RELEVANT TIME PERIOD.
The available evidence establishes that 4,500 vehicles is "a reasonable estimate of the [number of cars involved in the] loss, given the available information." Guideline 2F1.1, Application Note 8. This evidence was gathered from various persons and entities with whom XXXXX did business.
The government obtained information from "floorplanners"[FN3] and banks with which XXXXX did business, from parties who sold XXXXX vehicles, as well as from some of the businesses XXXXX ran. These sources of information, and the number of vehicles documented through each, are listed in Exhibit 1. As set out in that exhibit, the United States has proof that XXXXX handled approximately 3,288 vehicles between 1987 and 1990.[FN4] This figure, however, does not represent a truly reasonable estimate of the total number of cars purchased and sold by XXXXX between 1987 and 1990. The documentation does not cover the entire period of the scheme, but represents only what the investigation was able to piece together for the years 1987 through 1990. Because the United States could not determine all of XXXXX's sources of financing, it has been unable to obtain records for all of the vehicles XXXXX purchased. In particular, it has obtained only scant documentation for the years 1988 and 1989.
This estimate is in turn based first on statements made by witnesses, including XXXXX himself, estimating XXXXX's volume at 100 cars per month.[FN5] In addition, the figure is corroborated by the documents discussed above. During the periods for which the government has been able to obtain full documentation, XXXXX sold well over 100 cars a month. Specifically, the government has obtained documents from XYZ Resources, one of XXXXX's floorplanners, that cover the period from March 1987 to January 1988. Those documents show that during this 10 month period, XXXXX bought and sold over 1,200 cars, an average of over 120 per month.
B. XXXXX DIRECTED ODOMETER ROLLBACKS ON 70 PERCENT OF THE VEHICLES HE HANDLED.
FN6. The checks for mileage discrepancies were accomplished by comparing mileage from state registration files or title histories showing mileage after XXXXX's organization sold the vehicles to other evidence of mileage on the vehicles before XXXXX acquired them. The comparisons were done by Special Agent Robert Eppes of the Department of Transportation or someone acting under his direct supervision. Investigator Eppes checked for "pre-XXXXX" mileage by examining documents obtained from persons who sold to XXXXX, or obtained from their financial institutions; by checking mileages stored in a computer system used to track vehicle titles and mileages; by examining other title history documents; or by orally contacting an owner prior to XXXXX to inquire as to the mileage at which the vehicle was sold to XXXXX. In all cases the identity of the vehicle was verified by "VIN," or vehicle identification numbers, which are unique to each vehicle.
XXXXX's written objections do not directly dispute the loss estimate per car of $4,000 contained in the PSR. However, based upon conversations with counsel, it appears that XXXXX may dispute this figure. In any event, that figure is well supported by the evidence and by the guidelines.
1. THE AVERAGE ROLLBACK ON VEHICLES XXXXX SOLD WAS OVER 40,000 MILES.
The government has calculated the average amount of the mileage discrepancies it has documented. These calculations yielded an average rollback of 42,973 miles. See Exhibit 2.[FN8] XXXXX does not appear to contest this figure.
2. THE AVERAGE CONSUMER LOSS PER VEHICLE, AS DETERMINED UNDER THE GUIDELINES, EXCEEDED $4,000 YIELDING AN OFFENSE LEVEL INCREASE OF 15.
There are two possible methods for estimating the loss per vehicle in this case: that suggested by an application note to Guideline 2F1.1 (and referenced in ¶ 33 of the PSR) and that actually used by the PSR to calculate the total loss figure. Both methods demonstrate that the $4,000 per car figure used by the PSR is a conservative and reasonable estimate.
As indicated above, the guidelines contemplate determining the amount of loss on the basis of reasonable estimates of loss per victim. Guideline 2F1.1, Application Note 8. Since November 1, 1991, the guidelines have clarified how this estimate is to be accomplished in consumer fraud cases as this. Application Note 7(a) provides: "In a case involving a misrepresentation concerning the quality of a consumer product, the loss is the difference between the amount paid by the victim for the product and the amount for which the victim could resell the product received."[FN9]
In cases involving odometer rollbacks, this application note requires estimating the value of cars with rolled odometers, and essentially giving the defendant a "credit" for this amount when compared to the consumer price. (The consumer is the victim because, even when XXXXX initially sold vehicles to other car dealers, those dealers merely passed the vehicles along as low mileage vehicles.)
When the odometer on a motor vehicle is altered, and the vehicle resold, it becomes impossible to know the vehicle's true mileage. As a result, such vehicles must be sold with notice to the buyer of an odometer discrepancy. See 15 U.S.C. § 1988(a).[FN10] Consumers resist purchasing cars branded as having an odometer discrepancy, which diminishes their value.[FN11] Because there is little market for such cars, a precise value the defrauded consumer might obtain for a "clocked" car cannot be determined. However, the Guidelines do not require a precise evaluation. United States v. Wilson, 900 F.2d 1350, 1356 (9th Cir. 1990); United States v. Lohan, 945 F.2d 1214, 1219 (2d Cir. 1991).[FN12]
These calculations reflect the reality that clocked vehicles have but a fraction of the value of a car with known low mileage, which is what the consumer paid for. A consumer with a clocked car is in a poor position to discover the true mileage of the vehicle, and faces the fact that dealers simply do not want to purchase clocked cars at all.[FN13]
These calculations demonstrate the conservative nature of the loss calculations in the PSR. The PSR calculated the loss based on comparing the value of high and low mileage vehicles with accurate odometers, and adding in estimates of expenses incurred by the buyers of "clocked" cars, without factoring in the "taint" caused by a rolled back odometer. While this methodology is not that contemplated by Application Note 7(a), it demonstrates losses of 4,000 dollars per vehicle, and is well supported by the evidence.
These loss calculations are reflected in PSR ¶¶ 26-30, and are documented by Exhibits 3-5. Exhibit 3 shows that the average difference between XXXXX's purchase price for high mileage vehicles, and the price consumers paid for what they thought were low mileage vehicles, was over $4,000. In addition, Exhibit 5, the Declaration of Richard Morse, shows that a 40,000 mile rollback diminishes the wholesale value of the types of cars sold by XXXXX by between $3,000 and $4,000. Additional costs incurred by the purchaser of a rolled back vehicle approach $1,000. See PSR ¶¶ 27-30; Eppes Declaration, Exhibit 4 at ¶ 9. The difference in value between a high mileage car and a low mileage car (using an average rollback of 40,000 miles), combined with the additional costs incurred by the purchasers of a rolled back car, in most cases will exceed $4,000, and in all cases will at least approach $4,000. An estimate of $4,000 per vehicle is therefore a reasonable estimate of the losses suffered by a consumer who purchases a rolled back car, without factoring in the "taint" of the rollback and the resulting lack of a resale market.
As discussed above, the PSR properly attributed 3,150 rollbacks to XXXXX. The PSR assigns a loss per vehicle of $4,000, resulting in a 15 level increase under Guideline 2F1.1(b)(1)(P). Because this guideline covers losses in the $10,000,000 to $20,000,000 range, it is the correct one to apply to a 3,150 vehicle rollback scheme where the loss per vehicle is in the range of $3,175 to $6,439.[FN14] The PSR's loss figure is within this range, and is reasonable, reflecting difference in value between a high mileage car and a low mileage car, and taking into account the additional expenses incurred by the purchaser of a rolled back vehicle.[FN15] A more precise calculation is neither possible nor required. Wilson, Lohan.
II. XXXXX'S OTHER OBJECTIONS ARE UNFOUNDED.
A. XXXXX'S ODOMETER ROLLBACK SCHEME INVOLVED MORE THAN FIVE PERSONS
XXXXX objects to the PSR's conclusion that a four level upward adjustment in his offense level is required because he was the "organizer or leader of a criminal activity that involved five or more participants." Guideline § 3B1.1(a); PSR ¶ 42. XXXXX's objection is unfounded.
The PSR identifies five different individuals who performed rollbacks for him. PSR ¶¶ 19, 23. In addition, XXXXX directed two individuals to perform the work of altering titles to reflect the low mileages, and employed at least one other individual to obtain blank, certified copies of titles to be filled in with false low mileages. Finally, he employed at least one person to perform errands related to the odometer rollback scheme, such as driving vehicles to the location where the actual rollbacks were performed.
The evidence supports a four-level upward adjustment under Guideline § 3B1.1(a).
XXXXX appears to argue that Guideline 5G1.1(a) requires that the statutory maximum on Count I (five years) is the ceiling for his sentence even if the guidelines sentence exceeds five years. Sentencing on multiple counts, however, is governed by Guideline 5G1.2, which requires that if the guidelines sentence exceeds the statutory maximum on any one count, the court must order that sentences on multiple counts be served consecutively, to the extent necessary to produce the appropriate sentence under the guidelines. See U.S.S.G. § 5G1.2(d).
The method of determining amount of loss employed in the PSR is dictated by the Guidelines. The loss figure used in the PSR is a reasonable estimate supported by the evidence, and the offense level determined in the PSR is appropriate.
Dated: August 26, 1992 Respectfully submitted,
Ronald G. Woods United States Attorney
By: ________________________________ EDWARD F. GALLAGHER, III Assistant United States Attorney
________________________________ LEON F. SZEPTYCKI Attorney Office of Consumer Litigation U.S. Department of Justice P.O. Box 386 Washington, D.C. 20044 (202) 307-02199
Updated February 19, 2015