United States v. Lester Kasprowicz

MEMORANDUM

Lester Kasprowicz appeals his convictions on one count of making false statements to a federally insured institution ( 18 U.S.C. § 1014 ) and one count of money laundering ( 18 U.S.C. § 1957 ). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm and remand for amendment of the restitution obligation as appropriate.

The charging decision in the case at bar was made before Kasprowicz went to trial on mail fraud charges. Use of the investigative demand to obtain mortgage documents—to the extent it was prosecutorial—also took place before Kasprowicz’s mail fraud trial. Consequently, neither event supports a presumption of vindictiveness. See United States v. Kent, 649 F.3d 906, 913 , 2011 WL 2020853, at *5 (9th Cir.2011) (“[I]n the context of pretrial plea negotiations, vindictiveness [is] not ... presumed simply from the fact that a more severe charge followed on, or even resulted from, the defendant’s exercise of a right.”) (internal quotations omitted). Moreover, the charges in the present case and the mail fraud charges are based on separate nuclei of operative fact. See United States v. Martinez, 785 F.2d 663, 669 (9th Cir.1986). Kasprowicz produced no…