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United States v. Gordon

United States District Court, D. Nebraska

August 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DARNELL GORDON, et al., Defendants. Victim Date of Offense Total Loss Codefendants Evidence

          FINAL ORDER ON RESTITUTION

          JOHN M. GERRARD UNITED STATES DISTRICT JUDGE

         This matter is before the Court for a final determination of restitution to be awarded pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §§ 3613A, 3663A. The Court must determine the amount of restitution "in the full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant[s]." 18 U.S.C. § 3664(f)(1)(A). The government has the burden of demonstrating the amount of loss sustained by a victim as the result of the offense. 18 U.S.C. § 3664(e). And the Court must resolve any dispute as to the amount or type of restitution by the preponderance of the evidence. 18 U.S.C. § 3664(e).

         As discussed below, each of the defendants-with the exception of Darnell Gordon and Brenis Vaughn-has stipulated to a restitution obligation based on their respective contribution to the victims' losses.[1] See filing 473; filing 474; filing 480; filing 493; filing 500. The Court has carefully reviewed those stipulations, and finds them consistent with the evidence adduced at an April 24, 2018 evidentiary hearing. So, the stipulations that have been received will be adopted. The Court will reserve ruling with respect to the amount of Brenis Vaughn's restitution upon receipt of his stipulation, or the setting of a hearing herein. As to Darnell Gordon, the Court will order restitution in the amount of $263, 767.92.

         The defendants in this case pled guilty to conspiring to commit bank larceny.[2] Filing 125; filing 160; filing 175; filing 276; filing 294; filing 315; filing 334; filing 352. Those charges stem from a series of incidents in which the defendants pulled ATMs through glass-enclosed buildings using ropes, chains, and stolen vehicles. As part of that scheme, the defendants identified and surveilled ATMs in Nebraska, South Dakota, Iowa, and Missouri. When the targeted business closed for the evening, the defendants broke in, often using hammers and rocks to shatter glass entryways. Filing 487 at 116. Once inside, the defendants placed a chain or rope around the ATM, and pulled it out using a stolen truck or rental vehicle. See filing 487 at 26. The defendants then transported the machine to a home or garage, disassembled it with heavy machinery, and stole the money inside. See filing 487 at 76.

         Gordon was sentenced to 120 months' imprisonment for his role in the conspiracy. Filing 445 at 1. After sentencing, the Court held an evidentiary hearing to determine the amount, if any, of Gordon's restitution obligation. See filing 487. There, the government adduced testimony from Mathew Saad, an FBI agent assigned to the case, regarding Gordon's extensive involvement in the conspiracy. According to Saad, Gordon was directly involved in 32 larcenies resulting in $305, 167.92[3] in victim losses. See filing 483 at 5. That conclusion, Saad testified, is supported by cooperating witness testimony, cell phone data, recorded jail calls, and other evidence placing Gordon at the scene of each incident. See filing 487 at 19-20.

         Gordon also testified at the evidentiary hearing. He admitted his participation in several of the larcenies, but denied involvement in others. See filing 489 at 2. Gordon also disputed the government's characterization of him as the group's "ringleader," describing the arrangement instead as a "loosely organized group of persons who took different roles from time to time." Filing 489 at 2. The Court, in significant part, does not find Gordon's testimony credible.

         Based on the evidence adduced, the Court will order restitution in the amount of $263, 767.92. That figure reflects Gordon's participation in, and total loss from, 28 larcenies addressed at the evidentiary hearing, which the government has established by a preponderance of the evidence. United States v. Martinez, 690 F.3d 1083, 1088-89 (8th Cir. 2012). Gordon was not, to be sure, solely responsible for each of those incidents. But it is clear from the evidence presented that he played a significant leadership role in recruiting and directing members of the conspiracy. See filing 487 at 57-58. So, Gordon will be responsible for the full restitution amount, subject to joint and several liability (addressed below), to reflect his "level of contribution to the victim[s'] loss[.]" 18 U.S.C. § 3664(h). See United States v. Lipton, 502 Fed.Appx. 693, 694 (9th Cir. 2012); United States v. Meredith, 370 Fed.Appx. 930, 934 (10th Cir. 2010).

         ATM Larcenies

         The Court heard evidence regarding Gordon's alleged involvement in 32 larcenies over a 2-year time span. The Court finds that the government has satisfied its burden with respect to the 28 incidents detailed below. The government has not satisfied its burden with respect to the remaining 4 incidents, and losses from those offenses will not be reflected in Gordon's overall restitution obligation.

         a. Gordon's involvement in 28 incidents

         The Court finds that Gordon was involved in 28 larcenies. For each incident, the Court will provide (1) the name of the targeted business; (2) the date of the larceny; (3) the total amount of victim loss (which Saad confirmed by cross-referencing insurance claims, filing 487 at 25); and (4) the names of each defendant involved in the particular offense, other than Gordon, to the extent that information is available.

         Also included in the table is the evidence linking Gordon to the particular incident. To that end, the Court has considered Saad's summation of cooperating witness testimony placing Gordon at the scene of each offense ("cooperating witness"). The Court has also considered Gordon's own testimony, in which he admitted participation in several specific offenses ("Gordon testimony"). And the Court has considered other evidence, such as jail calls and cell phone location data, placing Gordon at or near the location of at least 5 larcenies ("location data").

Victim
Date of Offense
Total Loss
Codefendants
Evidence
Casey's General Store
2/20/14
$204.91
Isaiah Brown
Cooperating witness
Phillip's 66
2/20/14
$3, 940.00
Isaiah Brown
Cooperating witness
Sun Mart Lincoln, NE
2/27/14
$400.00
Larry Gordon Isaiah Brown
Cooperating witness
Pump & Pantry Omaha, NE
2/27/14
$12, 800.00
Larry Gordon Bakari Hunt Isaiah Brown
Gordon testimony Cooperating witness
Centris Credit Union Omaha, NE
2/28/14
$406.00
Larry Gordon Bakari Hunt Isaiah Brown
Cooperating witness
Great Escape Theater Omaha, NE
3/05/14
$14.000.00
Larry Gordon Isaiah Brown
Cooperating witness
Bag & Save Omaha, NE
3/19/14
$625.00
Isaiah Brown Larry Gordon
Cooperating witness
King Kong Omaha, NE
4/05/14
$3, 000.00
Larry Gordon
Cooperating witness
D&S Express Council Bluffs, IA
4/05/14
$350.00
Larry Gordon
Cooperating witness
Casey's General Store Omaha, NE
4/10/14
$4, 110.47
Isaiah Brown
Gordon testimony Cooperating witness
Super Carnicia Omaha, NE
5/02/14
$2, 500.00
Larry Gordon Isaiah Brown
Cooperating witness
License Bureau St. Joseph, MO
5/04/14
$4, 500.00
Larry Gordon Isaiah Brown
Gordon testimony Cooperating witness
Hy-Vee Gas Omaha, NE
5/24/14
$1, 000.00
Larry Gordon Isaiah Brown
Cooperating witness
C-Store Lincoln, NE
6/15/14
$71, 581.98
Larry Gordon Lyle Gordon Isaiah Brown
Gordon testimony Cooperating witness
Eddy's LaVista Mart LaVista, NE
7/15/14
$3, 000.00
Isaiah Brown
Cooperating witness
On The Go Lincoln, NE
8/06/14
$10, 000.00
Isaiah Brown
Cooperating witness
Get-N-Go Sioux Falls, SD
9/05/14
$1, 184.00
Isaiah Brown Wakonda Hazel
Cooperating witness
Casey's General Store Waverly, NE
4/30/15
$10, 549.13
Wakonda Hazel
Cooperating witness
North Star Express Lincoln, NE
06/02/15
$2, 590.86
Wakonda Hazel
Cooperating witness
Andy's Convenience
Store
Omaha, NE
6/08/15
$6, 930.00
Wakonda Hazel
Cooperating witness Location data
MoMo's Pizza Lincoln, NE
6/22/15
$3, 610.00
Wakonda Hazel
Gordon testimony
U-Stop Lincoln, NE
6/24/15
$1, 157.89
Wakonda Hazel
Cooperating witness
Walgreens Lincoln, NE
9/22/15
$7, 320.00
Unidentified
Cooperating witness
Location information
Gordon testimony
Nehawka Bank Union, NE
9/25/15
$7, 571.49
Lyle Gordon
Isaiah Brown
Cal McCoy
Wakonda Hazel
Cooperating witness Location information
Casey's General Store Des Moines, IA
10/08/15
$15, 637.50
Wakonda Hazel
Lyle Gordon Brenis Vaughn
Gordon testimony
Douglas County
Treasurer
Omaha, NE
11/09/15
$24, 740.00
Lyle Gordon
Cooperating witness
First State Bank Waverly, NE
11/23/15
$30, 058.69
Cal McCoy
Lyle Gordon
Wakonda Hazel
Cooperating witness Location information
Walgreens Lincoln, NE
03/07/16
$20, 000.00
Lyle Gordon Wakonda Hazel
Cooperating witness Location information

         b. ...


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