                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4393




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                                                               NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT




                                     No. 06-4393




                           UNITED STATES OF AMERICA

                                          v.

                                  DEAN K. PIPER,
                                            Appellant


                   On Appeal from the United States District Court
                            for the District of New Jersey
                            (D.C. Crim. No. 01-cr-00478)
                      District Judge: Hon. Katharine S. Hayden


                     Submitted Under Third Circuit LAR 34.1(a)
                                  June 24, 2008

               Before: SLOVITER, BARRY and ROTH, Circuit Judges

                                (Filed: June 30, 2008)




                                      OPINION


SLOVITER, Circuit Judge.

      Defendant Dean K. Piper, who pled guilty to wire fraud, appeals the award of
restitution entered by the District Court, claiming that there was insufficient evidence to

support $30,000 of the $295,000 restitution ordered.

                                              I.

       Amitex was a purported financial institution located in the Bahamas. It ostensibly

financed the purchase of tangible commodities solicited through telemarketing boiler

rooms1 located throughout the United States in exchange for various fees. Between late

1997 until March 1998 Piper owned and operated an Amitex boiler room named Franklin

Asset Management Corporation (“FAMC”) in Keyport, New Jersey. FAMC obtained a

handful of customers, including Tom Beetstra. In March 1998, Piper created the World

Bullion Exchange, which was a scam like FAMC. He used it to defraud Beetstra and

another individual named Michael Bongo.

       On July 20, 2001, Piper pled guilty to a one-count information charging him with

wire fraud in violation of 18 U.S.C. § 1343. The parties entered into a plea agreement, in

which Piper agreed to cooperate against other individuals involved in the scheme. The

parties initially stipulated that the amount of loss attributable to Piper was more than

$120,000 but less than $200,000. In the Pre-Sentence Investigation Report, the Probation

Office calculated the loss attributable to Piper to be $265,300, to which the parties then




                    1
                      The District Court explained, “when we say boilerroom,
             we’re talking about salespeople, telemarketers in a room with
             phones selling investment opportunities to folks over the phone.”
             App. at 44.

                                              2
stipulated at sentencing.

       Thereafter, the District Court heard testimony from Beetstra in which he testified

that the stipulated amount did not include two additional $15,000 payments he had made

to Piper. He provided no documentary evidence to substantiate the $30,000 loss. No

corroborating evidence was found in Piper’s records, even though he had provided his

records regarding his fraudulent business, nor was there any corroboration in Piper’s

banking records that the government had seized.

       Although Beetstra could not remember the date of the payments, he testified that

he was “sure of the payment,” App. at 32, because he stated that he had kept a written

tally in his pocket. When asked by the Court if he currently had that piece of paper,

Beetstra said, “No. I don’t know if I did have one. I sent that to the government.” App.

at 37. There was some dispute whether the government had ever received such a tally.

Beetstra, however, insisted that he made those payments:

              THE COURT: What makes you know for sure you made
              those payments?

              MR. BEETSTRA: I can recall the numbers. I can recall the
              numbers that I’m up to a quarter of a million; I am up to a
              quarter of a million I kept telling myself. I remember it being
              that high. I just know it was that high. I can recall now that
              the number was huge.

App. at 37.

       Beetstra testified he had made those payments via wire transfer, but could not

provide verification because his bank told him that it does not keep wire transfer records.

                                             3
After Beetstra’s testimony, the District Court gave Piper the opportunity to question

Beetstra, but Piper’s counsel declined to ask any questions or engage in any cross-

examination.

       The Court was evidently troubled in considering the amount of restitution to

award. It commented as follows:

               THE COURT: The Court is presented with a somewhat
               difficult problem. And restitution is always difficult.
               Ultimately the Court is pretty much left to making a
               determination on its own.

App. at 40-41.

       After additional colloquy, the Court stated,

               I am no different than a juror, one finally asks oneself if the
               proofs are not as crystal clear as everybody would like,
               particularly where we are talking about, I know I did, but I
               can’t show you the pieces of paper, we say why would this
               person lie? And I really have to come down to why would
               Mr. Beetstra, in telling Mr. Barrett, this is what I lost, here’s
               what I’ve got, why would Mr. Beetstra be saying in all
               candor, I know what I lost, and it’s $222,300 and I made two
               $15,000 payments at times and I can not remember, but I
               know that I made them and I know they were $15,000. And
               quite frankly, it strikes me as credible testimony . . . [T]he
               absence of records is affecting both sides. It was a long time
               ago. It was eight years ago and more, and I am finding
               credible Mr. Beetstra’s claim that the amount of loss, the
               amount of payment to Mr. Piper is an extra $30,000.

App. at 49.

       After finding Beetstra’s testimony to be credible, the Court increased Piper’s

restitution amount by $30,000. The final restitution order was for $295,300; $222,300 to

                                               4
be paid to Beetstra and the balance to Bongo.

       Piper does not dispute that $265,300 in loss was properly attributed to him for

purposes of restitution. Rather, his appeal is limited to his claim that the additional

$30,000 was not a proven loss, and that the District Court abused its discretion in finding

that it was.2

                                              II.

       Restitution is limited to the amount of actual loss suffered by the victims of a

defendant’s conduct. United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007). “The

burden of demonstrating the amount of loss is on the government, and any dispute

regarding the proper amount is to be resolved by a preponderance of the evidence.” Id.

(citing 18 U.S.C. § 3664(e)). We review the District Court’s factual finding regarding the

amount of loss for clear error. Id. (citing United States v. Akande, 200 F.3d 136, 138 (3d

Cir. 1999)). To establish clear error in this case, Piper would have to show that the

$30,000 addition to the restitution figure is “‘completely devoid of a credible evidentiary

basis or bears no rational relationship to the supporting data.’” Id. (quoting United States

v. Haut, 107 F.3d 213, 218 (3d Cir. 1997)).

       Notwithstanding that the only evidence to prove the $30,000 loss is Beetstra’s

uncorroborated self-serving testimony, we cannot conclude that the District Court’s




                      2
                        We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
                U.S.C. § 3742(a).

                                               5
decision that the $30,000 constituted an additional loss is “completely devoid of a

credible evidentiary basis.” Id. (citation and internal quotations omitted). The District

Court was in the best position to judge Beetstra’s credibility. After all, the Court took the

sworn testimony of Beetstra, and questioned him about the basis for his knowledge and

why he had no supporting documentation. The Court gave both parties an opportunity to

question Beetstra, which they declined. Although the evidence was not overwhelming,

the District Court did not clearly err in determining the amount of loss. See Nara v.

Frank, 488 F.3d 187, 201 (3d Cir. 2007) (stating that in “‘doubtful cases’” district court’s

power of observation is often the most accurate way to ascertain the truth) (citation

omitted).

                                             III.

       For the above-stated reasons, we will affirm the judgment of conviction and

sentence.3




                    3
                       The government argues that we should review Piper’s
             claim for plain error because he did not properly preserve his
             objection. Because of our ultimate disposition, it is not necessary
             to resolve that issue.

                                              6
