By Joe Pinchot
Herald Staff Writer
WORTH TOWNSHIP
August 17, 2007 06:20 pm
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A federal judge cut an Indianapolis man arrested in Mercer County a break by accepting his arguments concerning the value of counterfeit items.
Mamadou Diallo, 42, a native of Guinea, West Africa, was found guilty in April 2006 of trademark counterfeiting. His sentencing has been delayed by after-verdict motions, plea negotiations, a judicial investigation into a juror’s use of a Palm Pilot, and discussions of his immigration status.
Thursday, U.S. District Court Judge Nora Barry Fischer, Pittsburgh, sentenced Diallo to 6 months’ home detention, 3 years’ probation and restitution of $2,600.
Diallo was arrested July 13, 2005, when state police trooper Timothy Callahan stopped Diallo’s minivan on Interstate 80 in Wolf Creek Township for not having a light on the license plate.
Diallo and another occupant gave Callahan permission to search the van, and the trooper found counterfeit Louis Vuitton, Prada, Coach, Kate Spade, Bluberry and Chanel items, including handbags, clothing and jewelry. Diallo said he had bought them in New York and was heading to Indianapolis to sell them at his flea market booth.
The U.S. Attorney’s Office and Diallo’s federal public defender differed over the value of the goods Diallo possessed. Prosecutors said the value should be based on what genuine goods cost — about $215,000 — while the defense maintained the value should be based on what Diallo would have sold them for, about $10,000.
The value is important not only for determining restitution, but because it factors into the sentencing guidelines, which the judge must consider, although she may depart from them.
Judge Barry sided with Diallo because: the items “would not appear to a reasonably informed purchaser to be identical” to genuine items; they were to be sold at a flea market; the retail price of the knockoffs is significantly less than those of genuine items; and the value of a genuine item does not provide an accurate assessment of the harm to a trademark or copyright.
The sides also differed over whether Diallo accepted responsibility for his conduct, which also factored into his sentence. Prosecutors said he could not accept responsibility after being convicted.
Judge Barry concluded Diallo had accepted responsibility because he: admitted to the essential element of trademark counterfeiting – he transported the goods with intent of selling them; had cooperated with the government throughout the case; remained employed while his case was pending; and had complied with all court requests made of him.
Prosecutors asked for a prison term in line with the recommendation of the probation officer who wrote Diallo’s presentence report: 33 to 41 months.
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