U.S.A. v. Zvi

• Citation: 242 F.3d 89
• Decision Date: 12 October 2000
• Docket Number: Docket No. 99-1713
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. LUIZ BEN ZVI, Defendant-Appellant. August Term 2000 Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 89

242 F.3d 89 (2nd Cir. 2001)

UNITED STATES OF AMERICA, Appellee, v. LUIZ BEN ZVI, Defendant-Appellant.

Docket No. 99-1713

August Term 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: October 12, 2000

Decided: March 06, 2001

Defendant appeals from a criminal judgment and sentence entered by the United States District Court for the Eastern District of New York (Platt, J.). On appeal, defendant argues that: (1) the district court should have dismissed the wire fraud conspiracy charge because the first indictment filed against her was outside the statute of limitations period, none of the superceding indictments properly related back to the first indictment for purposes of tolling, and none of the superceding indictments was independently timely; (2) the defendant did not receive effective assistance of counsel as required by the Sixth Amendment when trial counsel failed to challenge the timeliness of the wire fraud conspiracy charge; (3) the district court erroneously considered time-barred objects of domestic and international money laundering in calculating the offense level under U.S.S.G. § 1B1.2(d), which provides that a multi-object conviction charged in a single count may be treated for purposes of sentence computation as "a separate count of conspiracy for each offense that the defendant conspired to commit"; and (4) the district court, in ordering defendant to pay nearly six and a half million dollars in restitution, abused its discretion in not identifying the specific victims who suffered losses from defendant's conspiratorial acts and committed clear error in imposing restitution in light of defendant's limited financial resources.

Affirmed.

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[Copyrighted Material Omitted]

CHARLES A. ROSS, Brafman & Ross, (Melinda Sarafa on he Briefs) New York, N.Y., for Defendant-Appellant.

PETER A. NORLING, Assistant United States Attorney, Eastern District of New York, New York, N.Y. (Loretta E. Lynch, United States Attorney, Eastern District of New York, Brooklyn, N.Y.; Cecil C. Scott, Assistant United States Attorney, of counsel) for Appellee.

Before: WALKER, Chief Judge, VAN GRAAFEILAND, Circuit Judge, MARRERO, District Judge.^*

Judge Van Graafeiland concurs in the result.

JOHN M. WALKER, Jr., Chief Judge:

Defendant Luiz Ben Zvi ("Ben Zvi") appeals from an amended judgment entered November 11, 1999 before the United States District Court for the Eastern District of New York (Thomas C. Platt, Jr., District Judge), following an earlier jury trial and subsequent appeal to this court, see United States v. Zvi ("Ben Zvi I"), 168 F.3d 49 (2d Cir.), cert. denied, 528 U.S. 972 (1999). The prosecution centered on a fraudulent scheme engineered by Ben Zvi and her brother in which they staged a robbery of their own jewelry store for insurance proceeds. On June 14, 1995, defendant was convicted, among other criminal violations, of a single-count multi-object conspiracy to commit wire fraud, domestic money laundering, and international money laundering.

In the first appeal, defendant challenged the money laundering objects of the conspiracy conviction as time-barred and this court agreed. The conspiracy conviction was sustained, however, because it was possible to tell that the jury's conviction was based in part on the timely wire fraud object. See id. at 55. The case was remanded for resentencing. On remand, the district court sentenced Ben Zvi to sixty months imprisonment and imposed restitution in the amount of $6,624,512.

In this appeal, defendant argues that: (1) the district court should have dismissed the wire fraud conspiracy charge because the first indictment filed against her was outside the statute of limitations period, none of the superceding indictments properly related back to the first indictment for purposes of tolling, and none of the superceding indictments was independently timely; (2) she did not receive effective assistance of counsel as required by the Sixth Amendment when her trial counsel failed to challenge the timeliness of the wire fraud conspiracy charge; (3) the district court erroneously considered time-barred objects of domestic and international money laundering in calculating the offense level under U.S.S.G. § 1B1.2(d), which provides that a multi-object conviction charged in a single count may be treated for purposes of sentence computation as "a separate count of conspiracy for each offense that the defendant conspired to commit"; and (4) in imposing the $6,624,512 restitution, the district court abused its discretion by not identifying the specific victims of defendant's conspiratorial acts and their individual losses, and clearly erred by ordering restitution in light of the defendant's financial resources.

For reasons which will be explained, we hold that (1) review of the wire fraud conspiracy conviction's timeliness is foreclosed by the law of the case doctrine, (2) the Sixth Amendment ineffective assistance of counsel claim is without merit, (3) the challenge to the district court's treatment of the time-barred money laundering objects as separate conspiracy convictions under United States Sentencing Guideline § 1B1.2(d) is moot, and (4) the restitution order is proper.

The judgment of the district court is affirmed.

BACKGROUND

The background of this case is substantially detailed in Ben Zvi I, 168 F.3d at 53; we set out only the facts relevant to this appeal.

Defendant, along with her brother Roz Ben Zvi, owner of Josi Jewelry which sold gold chains in New York City, staged a robbery of the facility on February 26, 1988. Prior to this, the "stolen" jewelry had been surreptitiously sold by the defendants and the proceeds laundered through overseas bank accounts. Following the "robbery," the two filed an insurance claim with Lloyd's of London for $3,995,000, the value of the "stolen" jewelry. In preparation for payment of the claim, Lloyd's made an electronic transfer from London, England on August 15, 1988 to Alan J. Martin, Lloyd's New York counsel. Martin subsequently used these funds to pay Josi and various jewelry consignors for their losses.

A grand jury indicted Ben Zvi and her brother for their roles in the scheme on August 11, 1993. The indictment ("First Indictment") contained two counts: one charging conspiracy to defraud Lloyd's between January 1988 and November 1988 and alleging as the sole object of the conspiracy and specifically citing defendant's causing the August 15th wire transfer from Lloyd's. Several overt acts undertaken by Ben Zvi and her brother in furtherance of the conspiracy also were alleged; all, however, were outside the conspiracy count's five year statute of limitations. A second count in the First Indictment charged Ben Zvi with the substantive offense of wire fraud, identifying the August 15th wire transfer as the predicate violation.

Ben Zvi's counsel filed a motion to dismiss the First Indictment on August 26, 1993, contending as to the conspiracy charge that "[n]one of the three alleged overt acts... [making up the wire fraud conspiracy] fall within th[e] five year" statute of limitations for conspiracy actions, and that the charge was therefore time barred. In response, the Government advised the district judge that it would file a superceding indictment that would "moot" Ben Zvi's objection regarding the failure to allege overt acts within the five year statute of limitations window.

On September 15, 1993, the Government filed a superceding two-count indictment ("Second Indictment") that was substantially identical to the First Indictment except for the addition of two overt acts in furtherance of the wire fraud conspiracy. The additional overt acts were:

(d) On or about August 15, 1988, the defendants ROZ BEN ZVI and LUIZ BEN ZVI... caused an electronic funds transfer to be made from London to Chemical Bank, account no. 041-009703.

(e) In or about and between August, 1988 and December 1989, the defendants ROZ BEN ZVI and LUIS BEN ZVI... caused checks to be drawn from Chemical Bank account no. 041-009703 in payment of the insurance claim.

After the Government filed the Second Indictment, Ben Zvi's trial counsel did not pursue dismissal of the conspiracy count, taking the position before the district court that "[t]hat portion of the motion involving the statute of limitations was eventually mooted by the government's filing of the [Second Indictment]."

On March 15, 1994, and again on May 15, 1994, the Government filed two more superceding indictments ("Indictments Three and Four") that substantially amended the conspiracy count to charge domestic money laundering and international money laundering as additional conspiracy objects, and charged substantive domestic and international money laundering counts as well. On June 14, 1995, a jury found Ben Zvi guilty of the single-count multi-object wire fraud, domestic money laundering, and international money laundering conspiracy together with numerous substantive domestic and international money laundering violations.

In her first appeal, Ben Zvi argued, among other things, that the substantive money laundering counts were outside the statute of limitations because Indictments Three and Four, which alleged these violations for the first time, were filed more than five years after the unlawful laundering occurred. We agreed and vacated the substantive money laundering convictions. See Ben Zvi I, 168 F.3d at 54-55. Although the money laundering objects of the multi-object conspiracy charge were necessarily time barred as well, we sustained the conspiracy conviction. We did so on the grounds that the jury instructions and verdict form revealed that the jury had found wire fraud as an independent object of the conspiracy, see id. at 55, and no challenge to the timeliness of the wire fraud object was made during the appeal.

We remanded the case to the district court to reconsider sentencing and its order of...