Soft Sentence in Federal Counterfeit Luxury Goods Prosecution
The recent sentencing of Mamdou Diallo illustrates that many members of the federal judiciary are unsympathetic to Government requests for stiff sentences for counterfeiters. Federal prosecutors asked for a sentence of 33 to 41 months in prison for Diallo, who was was found guilty of trafficking in goods bearing counterfeit trademarks in April 2006 after a trooper found counterfeit Louis Vuitton, Prada, Coach, Kate Spade, Bluberry and Chanel handbags, clothing and jewelry in his van. A similar sentence was also recommended by the probation officer who prepared Diallo's presentence report. Both relied on the cost of the genuine versions of the goods that Diallo sold -- approximately $215,000 -- in assessing the seriousness of Diallo's crime. In contrast, Diallo's lawyers argued that the sentence should be based on what Diallo would have sold the counterfeits for -- around $10,000. U.S. District Court Judge Nora Barry Fischer, of Pittsburgh, accepted the defense's argument, sentencing Diallo to 6 months’ home detention, 3 years’ probation and restitution of $2,600. According to The Herald of Sharon, PA, Judge Barry felt that the value of a genuine item does not provide an accurate assessment of the harm to a trademark or copyright caused by counterfeiting, reflecting a fairly sanguine view of the harms caused to brand-owners by counterfeiting. Judge Barry reportedly also adopted the lower value because the goods “would not appear to a reasonably informed purchaser to be identical” to genuine items and the defendant intended to sell them at a flea market for prices significantly below the prices of the genuine versions.