Loss Calculation in Fraud Case Not Affected by Turning Assets over to Government

U.S. v. Merriman, 2011 WL 3134656 (7/27/11) (Col.) (Published) - The defendant's turning in of millions of dollars worth of assets to the government at the time the defendant turned himself in for offenses the government didn't previously know about did not warrant subtraction of the value of the assets from the loss calculation. To be subtracted, USSG § 2B1.1 requires that the refunds be made to the victim, not the government, and before detection, not at the time of detection. And the d. ct. did not clearly err in finding the defendant had abused his position of trust under USSG § 3B1.3 where he had authority to make investments on behalf of investors with complete discretion to invest however he wanted. The lack of transparency significantly contributed to the defendant's ability to avoid detection. The position of trust did not have to be the only contributor to the fraud.