United States v. Cohen

A sentencing enhancement involving “a misrepresentation that the defendant was acting on behalf of a charitable organization” can be applied when the defendant does not purport work directly for a charitable organization.

Samuel Cohen misrepresented to individuals at a charitable organization called Vanguard Public Foundation (“Vanguard”) that the stock in his for-profit company, Ecast, would skyrocket from $3.50 per share to $30 per share. Cohen induced patrons of Vanguard to buy the shares because the sudden profit from the shares would enable the patrons to make large charitable contributions. Vanguard bought the stock, however Cohen never transferred the shares to Vanguard. The district court found that Cohen was guilty of wire fraud, money laundering, and tax evasion claims. The district court also applied a sentencing enhancement that requires “a misrepresentation that the defendant was acting on behalf of a charitable organization.” Cohen appealed the application of the sentencing enhancement.. Cohen argues that the enhancement should not apply because he did not purport to directly work for a charitable organization and the individuals at Vanguard had some desire to profit personally from buying the stock. The Ninth Circuit disagreed and held that the enhancement is aimed at individuals who take advantage of the generosity and charitable motives of victims and those who exploit victims’ charitable impulses create particular social harm. Because Cohen deliberately approached individuals at Vanguard to take advantage of their generosity and charitable motives, whether or not the individuals had some for profit motives is irrelevant. Therefore, the panel held that the enhancement did apply because Cohen specifically extended his offer to individuals he knew would be inclined to charitable giving. AFFIRMED.