                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2003

USA v. Cherry
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2509




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                                                              NOT PRECEDENTIAL

                   THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                ___________

                                    No. 02-2509
                                    ___________


                          UNITED STATES OF AMERICA

                                         vs.

                                 HITESH CHERRY,

                                         Appellant
                                    ___________

          ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                         (D.C. Criminal No. 00-cr-00094)
                District Judge: The Honorable Sylvia H. Rambo
                                  ___________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 January 24, 2003

           BEFORE: NYGAARD, AMBRO, and LOURIE,* Circuit Judges.

                             (Filed September 25, 2003)

                                    ___________

                             OPINION OF THE COURT

                                    ___________




*      Honor able Alan D. Lourie, Circuit Judge for the United States Court of
Appeals for the Federal Circuit, sitting by designation.
NYGAARD, Circuit Judge.

              The Appellant, Hitesh Cherry, pleaded guilty to conspiracy and mail fraud

and was sentenced to thirty months in prison. The District Court determined the amount

of loss to be between $500,000 and $800,000 and upwardly adjusted the sentence by ten

levels pursuant to U.S.S.G. §2F1.1. Cherry appeals the District Court’s determination of

the amount of loss. Because the District Court did not clearly err in its determination of

the amount of loss, we will affirm.

              The parties to this case, counsel, and the District Court are all familiar with

the facts and procedure of this case. Therefore, as we are writing a non-precedential

opinion and only for the parties herein, we recite only such facts necessary to our holding.

Cherry was a development engineer and manager with AMP, Inc. In 1990, Cherry

proposed that AMP develop a new electrical current transmission and distribution

connection system for electrical utilities. Over the next five years, Cherry outsourced

much of the work on these new products to two companies, American Equipment Testing

(AET) and Innovators International Inc. (III). Unbeknownst to AMP, and in violation of

AMP’s Global Code of Conduct, Cherry indirectly owned both AET and III. AET was a

fictitious-name company registered to Cherry’s wife, created solely for the scheme. It did

not own any facilities, and did not have employees other than Cherry and his wife. III

was incorporated in M aryland and consisted of only a post office box, contrary to

Cherry’s assertions that it was qualified contractor. Between 1991 and 1995 AET



                                              2
conducted some work related to the development of the new products, but did so using

AMP employees under the direction of Cherry. AMP paid AET $677,260 and III

$132,075 before the fraud was discovered.

              At the sentencing hearing, Cherry contended that because AET did expend

funds to rent space and for equipment, and did conduct testing of the products, which

resulted in data for AMP, it suffered no loss. Cherry argues that the data from the testing

has value for AMP and it simply needs to complete the testing process to reap the benefit

of his work. In contrast, the government points to AMP’s judgment that the work done

by AET and III resulted only in intangible assets that have no value to the company.

              At the sentencing hearing the District Court heard testimony concerning the

amount of loss. Cherry’s supervisor at AMP testified that AET’s work did not result in a

marketable product. App. at 71–73; PSR at 4. Cherry contends that AET purchased or

made testing equipment at a cost of over $200,000. App. at 109. This equipment was

apparently all eventually given to AMP, App. at 54–55, and the government concedes that

there may be some value to AMP for the equipment. App. at 99. Cherry provided a list

of the AET’s expenses, which allege to account for almost all of the money paid by AMP.

App. at 108. However, the government argued that Cherry’s proffered expenses for AET

are not credible and are belied by the I.R.S.’s analysis of the Cherrys’ finances. App. at

95. An I.R.S. review of the Cherrys’ financial records suggests that they used over

$500,000 of AET and III funds for personal expenses. PSR at 4.



                                              3
              The District Court’s conclusion of what constitutes loss under the

Sentencing Guidelines is subject to plenary review, while factual findings as to the

amount of loss are reviewed for clear error. See United States v. Brennan, 326 F.3d 176,

194 (3d Cir. 2003) (citation omitted). Because this case concerns only the District

Court’s calculation of the amount of loss, we will only reverse if the calculation is clearly

erroneous. The amount of loss need not be exact, it “need only be a reasonable estimate,

based on available information.” United States v. Hayes, 242 F.3d 114, 117 (3d Cir.

2001).

              Although the District Court recognized that the amount of loss was difficult

to determine, in light of the testimony presented at the hearing, its determination that the

loss was in excess of $500,000 was not clearly erroneous. AMP paid Cherry’s shell

companies over $800,000 to develop and test products that it never received. In its

business judgment, the data produced by AET was worthless to AM P. Just as the loss to

AM P cannot be calculated based solely on its expenditures, see U.S.S.G. §2F1.1 n.8

(noting that where the fraud involves misrepresentation of the value of an item, the actual

value may offset part of the loss), neither can Cherry assert that his alleged expenses

directly translate into value for AMP. Unlike United States v. Maurello, 76 F.3d 1304

(3d Cir. 1996), and Hayes, the District Court did credit Cherry in the loss calculation by

finding that the loss was below $800,000, it simply did not grant Cherry the full credit he




                                              4
was seeking. The District Court’s estimate of loss was reasonable and not clearly

erroneous, therefore we will affirm.




                                            /s/ Richard L. Nygaard
                                            Circuit Judge




                                            5
AM BRO, Circuit Judge, dissenting

                 I believe that the District Court did not touch the bases in holding that the

Government established by a preponderance of the evidence that Cherry caused at least a

$500,000 loss. Thus, I respectfully dissent from the majority’s judgment in favor of the

Government.

A. It Is Unclear That Cherry’s Expenditures Were Illegitimate.

                 There is conflicting evidence in the record concerning the amount of

AMP’s loss. The District Court appeared to credit the Government’s side of the story,

without explaining why it disbelieved Cherry.

                 As the majority notes, the Government’s loss calculation was based

primarily on the Pre-Sentence Report (“PSR”), which refers to an IRS audit. The PSR

states:

          In December 1995, the IRS executed a search warrant on the Cherry’s

          residence and recovered records of the fraudulent invoices and other

          financial records. Analysis of the financial records showed that the AMP

          receipts were deposited into AET accounts at Fulton Bank by the Cherrys,

          and into the III accounts at the First National Bank of Maryland . . . . These

          AMP payments were the only income of AET and III. Checks were then

          written from the First National Bank of Maryland account . . . and deposited

          into the Fulton Bank account of AET. Hema Cherry subsequently wrote
      checks from the Fulton Bank account to pay her American Express bills and

      to herself, which she then deposited into her own account at Harris Savings

      (now Waypoint Bank). The Harris Savings funds, along with Hitesh

      Cherry’s AM P salary from an account at Corestates Bank, were

      commingled to pay for personal expenses. These included vacations to

      Hawaii, Jamaica, Acapulco, the Grand Canyon, California, and India, as

      well as extensive renovations and additions to the Cherrys’ home. The

      couple also dined out extensively. A review by the case agent of the

      Cherrys’ income and expenses suggests that of the approximate[ly]

      $800,000 received by AET and III, between $500,000 and $600,000 was

      used by them for personal expenses.

             However, in the appendix to his brief, Cherry provides a detailed schedule

of expenses indicating that $718,107 of the more than $800,000 AMP paid to AET and III

represents legitimate business expenses. Moreover, he noted that the Government

specifically identified only approximately $180,000 worth of personal expenses, despite

the contrary statement in the PSR.

             Thus, there appears to be a discrepancy between the PSR – which claims

that most of the AMP-derived funds were used for the Cherrys’ personal expenses – and

the appendix Cherry submitted – which indicates that most of the funds were legitimately

expended. The District Court did not address, much less resolve, this discrepancy.   The



                                            2
Government offered to show the District Court the Cherrys’ financial records, but the

Court never looked at the records and therefore never confirmed the soundness of the

Government’s loss-calculation analysis. We have no basis to conclude whether the

Government or Cherry is correct as to how the funds at issue were expended.

B. It Is Unclear That AET’s Work Was Virtually Worthless.

              The Government also justifies the loss figure by arguing the design and

testing work AET performed was virtually worthless, even if Cherry did not divert the

funds to his personal use. It asserts that testing is only valuable if performed by a

trustworthy source and, because of Cherry’s fraud, AET was not trustworthy. In any

event, the Government argues that AET never performed the final qualification testing on

the the two products AET contracted to design – Suregrip and Camflex.

              Cherry disagrees, contending that AET provided valuable design and testing

services that benefitted AMP, even though AMP ultimately decided not to produce

Suregrip and Camflex. He also argues that AET never contracted to perform

qualification testing and that AMP’s decision ultimately not to produce Sureflex or

Camflex was not due to his fraud. He points to the testimony of an employee of both

AMP and AET, Daniel Nardone, who stated that “[q]ualification testing could have been

conducted on Camflex within one or two months. Suregrip would have been ready within

six months.” Cherry also introduced into evidence a report from Richard D. Brugger, a

consulting engineer, who opined that “[t]he AET test equipment is capable of reliably



                                              3
performing the tests which were required in the accumulation of data for Research &

Development needs” and that “[t]he test procedures used at AET are appropriate for the

production of data as intended for R& D design guidelines.”

              Because neither party introduced any tangible evidence concerning the

value of the work AET performed, the District Court’s valuation of AET’s services

reflected what was in essence its resolution of a credibility contest between the

Government’s witnesses and Cherry’s witnesses. The Court did not explain why it

resolved the dispute in favor of the Government. It instead provided a conclusory, one-

sentence explanation for the § 2F1.1 sentence enhancement – “The government has a

preponderance standard. I think if we consider everything, I cannot go under the

$500,000.00 figure and justify it at this point.” This explanation for enhancing Cherry’s

sentence under § 2F1.1, given the parties’ sharp disagreement over both the amount

Cherry diverted to personal use and the value of AET’s services, is self-evidently

inadequate. See United States v. Evans, 155 F.3d 245, 253 (3d Cir. 1988). (“The district

court made only a conclusory one sentence statement regarding its loss determination.

Although the district court’s determination need not be exact[,] . . . we should not be

asked to rummage through the entire record without guidance from the district court as to

the legal and factual basis for its determination.”).

              I would therefore remand for resentencing and thus respectfully dissent.




                                               4
