United States v. Miclaus, No. 19-4273 (6th Cir. 2021)
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Nicolescu, Miclaus, and coconspirators posted fake eBay car auctions. Operating from Romania, they concealed their IP addresses, and employed US-based “money mules,” to collect payments from unsuspecting buyers, taking in $3.5-$4.5 million. In 2014, a virus created by Nicolescu was embedded in the eBay auctions and in spam emails to collect more than 70,000 account credentials, including 25,000 stolen credit-card numbers. Their network of virus-infected computers “mined” for cryptocurrency, reaping $10,000–$40,000 per month, 2014-2016. The FBI and Romanian police executed a search warrant on members’ residences and retrieved electronic devices. Nicolescu and Miclaus were convicted of conspiracy to commit wire fraud, 12 counts of wire fraud, conspiracy to commit computer fraud, conspiracy to traffic in counterfeit service marks, five counts of aggravated identity theft, and conspiracy to commit money laundering.
The district court added 18 levels to their Guidelines calculation (U.S.S.G. 2B1.1(b)(1)(J)) for causing a loss of $3.5-$9.5 million, two levels (2B1.1(b)(4)) for being in the business of receiving and selling stolen property, two levels (2B1.1(b)(11)(B)(i)) for trafficking unauthorized access devices, four levels (2B1.1(b)(19)(A)(ii)) for being convicted under 18 U.S.C. 1030(a)(5)(A), and four levels (3B1.1(a)) for being an organizer or leader. They were sentenced to 216 and 240 months’ imprisonment.
The Sixth Circuit affirmed the convictions, rejecting challenges to the sufficiency of the evidence and to jury instructions, but vacated the sentences. The court upheld the loss calculation and leadership enhancement. The court erred in applying the stolen property enhancement and in applying a 2B1.1(b)(19)(A)(ii) enhancement because the men were convicted of conspiracy, not a substantive section 1030(a)(5)(A) offense.
The court issued a subsequent related opinion or order on November 9, 2021.
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