UNITED STATES ATTORNEY
SOUTHERN DISTRICT OF ILLINOIS
UPDATE ON KIMOTO CASE
Re: United States v. KYLE REID KIMOTO
The United States Department of Justice believes it is important to keep victims of federal crime informed of court proceedings. This notice provides information about the above-referenced criminal case.
On December 2, 2009, the U.S. Court of Appeals for the Seventh Circuit entered its Order affirming the district court’s judgment with respect to Kimoto’s conviction. Additionally, the Seventh Circuit affirmed all aspects of his sentencing, with the exception of the calculation of victims under U.S.S.G. § 2BI.I(b)(2)(C), which was remanded to the district court for further findings concerning the number of victims (case no. 08-3731). At the hearing on remand, Kimoto sought to raise issues beyond the scope of the mandate, but the district court declined to consider those issues. After reviewing the evidence, including more than 400 complaints to the Federal Trade Commission from consumers who had paid money to Kimoto, the court determined that well over 250 persons suffered an actual loss. In fact, the court noted, a coconspirator had testified at trial that Kimoto himself estimated during the ongoing fraud that only ten percent of the half-million consumers who shelled out $159 understood they were getting, at most, a debit card. On that basis, the court let stand the 6-level increase and corresponding 350 months’ imprisonment. Kimoto appealed again (case no. 10-2679) arguing that his convictions should be reversed on the grounds that prosecutors for consumer fraud are solely the province of state government and that the mail- and wire-fraud statutes are unconstitutionally vague. He also argued that the district court lacked authority to increase his offense level based on the amount of loss or number of victims, since these factors were not alleged in the indictment or decided by the jury beyond a reasonable doubt. The Seventh circuit found that none of these contentions were even arguable. More importantly, since none of these issues were raised in Kimoto’s first appeal, they were beyond the scope of the second appeal. The Seventh circuit emphasized that their remand was “confined to the calculation of the number of victims for purposes of § 2BI.I(b)(2)(C)” and that “no other aspects of Mr. Kimoto’s sentencing should be revisited.” The seventh circuit went on to state that, as the government notes, Kimoto does not challenge the court’s finding that the total easily exceeds 250. And even if he had, this factual determination is not clearly erroneous, given the evidence before the district court. Accordingly, the Seventh circuit AFFIRMED the judgment in the second appeal upholding the sentence imposed by the district court.
The Victim Notification System (VNS) is designed to provide you with information regarding the case as it proceeds through the criminal justice system. You may obtain current information about this case on the VNS web site at WWW.Notify.USDOJ.GOV or from the VNS Call Center at 1866-DOJ-4YOU (1-866-365-4968) (TDD/TTY: 1-866-228-4619) (International: 1-502-213-2767). In addition, you may use the Call Center or Internet to update your contact information and/or change your decision about participation in the notification program. If you update your contact information to include a current email address, VNS will send information to that email address. In order to continue to receive notifications, it is your responsibility to keep your contact information current.