US v. Mhana: Mahana ran a business in which he “paid in cash and below market value for fraudulently obtained latest-generation . . . electronics, which he then shipped in bulk to buyers overseas.” As part of the scheme, he had the devices “unlocked” so they could be used on any mobile network. He was convicted, after a jury trial, of multiple counts of transporting stolen goods, conspiracy, and money laundering. Although the indictment included a forfeiture provision, and the district court entered a preliminary order of forfeiture (for approximately $3.6 million), the district court ultimately refused to order forfeiture at sentencing.
On appeal, the Fourth Circuit affirmed Mhana’s convictions, but remanded with instructions for the district court to enter a proper forfeiture order. The court rejected several evidentiary arguments from Mhana. Primarily, Mhana argued that several spreadsheets compiling wireless user data, produced by wireless providers, were not “business records” because they were prepared in anticipation of litigation. The court held that in such situations the business record is the underlying data itself and later-compiled spreadsheets were admissible so long as the data they reflected were generated in the regular course of business. The court also rejected Mhana’s challenge to summary exhibits introduced by the Government which presented only selected data points for a series of transactions, rather than every data point available for those transactions. As to forfeiture, the court that under the applicable statute the court “shall” order forfeiture which “does not convey discretion.” The district court’s concerns of “double payment” of forfeiture and restitution didn’t matter.
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