U.S. v. Onyiego, 00-41250.

• Citation: 286 F.3d 249
• Decision Date: 15 March 2002
• Docket Number: No. 00-41250.,00-41250.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Yophes ONYIEGO, also known as Yophes Onyanuo, also known as Eric Ombui; Isaac Kipkurui Biegon; Mahmood Khan Lodhi, also known as Mike Lodhi, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

286 F.3d 249

UNITED STATES of America, Plaintiff-Appellee, v. Yophes ONYIEGO, also known as Yophes Onyanuo, also known as Eric Ombui; Isaac Kipkurui Biegon; Mahmood Khan Lodhi, also known as Mike Lodhi, Defendants-Appellants.

No. 00-41250.

United States Court of Appeals, Fifth Circuit.

March 15, 2002.

COPYRIGHT MATERIAL OMITTED

Terri Lynn Hagan, Asst. U.S. Atty. (argued), Plano, TX, for Plaintiff-Appellee.

Michael Dennis Samonek (argued), Olson, Gibbons, Wilbur, Nicoud, Birne & Gueck, Dallas, TX, for Onyiego.

David James Moraine (argued), Denton, TX, for Biegon.

Joe J. Monsivais, Asst. Fed. Pub. Def. (argued), Amy R. Blalock, Asst. Fed. Pub. Def., Tyler, TX, for Lodhi.

Appeals from the United States District Court for the Eastern District of Texas.

Before GARWOOD, JOLLY and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Yophes Onyiego, Isaac Biegon, and Mahmood Lodhi were among six people convicted for carrying out a conspiracy to traffic in stolen airline tickets. Lodhi was allegedly the mastermind behind the conspiracy. Biegon and Onyiego allegedly served as ticket brokers — selling and using the false tickets. Each defendant challenges the sufficiency of the evidence supporting his conviction. Specifically, Biegon challenges the government's use of the price written and filled in on the blank airline tickets by a co-conspirator as evidence of the "face value" of those tickets. Biegon contends that this value is false — insofar as it was "made-up" by his co-conspirator — and therefore cannot be used to establish the "$5000-or-more" jurisdictional element of the crime of interstate transportation of stolen goods. We refuse to read any sort of "truth" requirement into the jurisdictional element of this criminal statute. We hold that the face value of a stolen good is the value affixed to the face of that good. We therefore affirm the conviction of Biegon. We also affirm the sentences of his co-defendants, Onyiego and Lodhi. Finally, we reverse the restitution award because the award included unrecoverable consequential damages.

I

On May 9, 1997, Lodhi, along with three teenage boys, burglarized Dimension Travel. On the day of the burglary, Lodhi rounded up the three teenagers — one of whom was his son — to help him accomplish the crime. Lodhi told the teenagers that he had already checked out Dimension Travel. He instructed them to look for blank airline tickets once inside the travel agency. On the night of the burglary, Lodhi drove to Dimension Travel, dropped off the teenagers, and waited while the crime was committed. The teenagers broke through a glass window in the front of the agency and proceeded to steal three thousand blank airline tickets. The teenagers then deposited the stolen tickets in the back of Lodhi's Cadillac.

Before the burglary, Lodhi was sought out by Kamran Burney, who hoped to secure some blank airline tickets. Burney had the computer software necessary to forge blank airline tickets. In particular, he could use his computer to fill in the price, destination, airline, and date of travel on the blank airline tickets. Lodhi told Burney that he could get him some blank tickets but that a down payment was required. Burney gave Lodhi a $2000 down payment. Lodhi promised delivery of the tickets within a few days. Before receiving the tickets, Burney recruited various people to broker the stolen tickets, including Onyiego and Biegon. He instructed the brokers to call him with customer information so that he could then fill in the blank tickets. He further instructed the brokers that if anyone should inquire about the source of the tickets they should lie and claim they got the tickets through 1-800-flyer. Lodhi delivered the stolen tickets to Burney, who then began trafficking the tickets through Biegon, Onyiego and others.

Biegon ran a travel agency, Zooken Travel. Burney sold Biegon 10 to 12 stolen tickets for between $200 and $300 per ticket. Biegon later sold these stolen tickets for upwards of $1400. Burney delivered the tickets to Biegon at his travel agency and in a parking lot.

Onyiego bought a number of tickets from Burney and then resold the tickets. On one occasion, Onyiego told a customer not to confirm the tickets because the ticket was "no good." On another occasion, Onyiego advised a customer to lie to the FBI and say he received the tickets, not from Onyiego, but from Eric Ombui. Onyiego made at least one of his ticket sales in a parking lot in Plano, Texas.

The stolen ticket sales imposed a significant cost on the airlines and Dimension Travel. By the trial date, the airlines had charged Dimension Travel $598,506.60 for the passengers flying on the stolen tickets. This value reflected the sum of the amount filled in by Burney on each stolen ticket.

Upon the referral of the Plano Police Department, the FBI investigated the crime. On April 12, 2000, a federal grand jury returned a two-count indictment against six defendants, including Lodhi, Biegon, and Onyiego. Count One of the indictment charged each defendant with conspiracy to transport stolen goods in interstate commerce. Count Two charged each defendant with the substantive offense underlying the conspiracy charge.

A jury found Onyiego, Biegon, and Lodhi guilty of the interstate transportation of stolen goods and conspiracy to transport stolen goods in interstate commerce. Onyiego was sentenced to 24 months imprisonment and $6,802.80 in restitution. Biegon was sentenced to 9 months imprisonment and $8,275.18 in restitution. Lodhi was sentenced to 115 months imprisonment and $622,053.84 in restitution.

Each defendant now appeals.¹

II

We first address Biegon's challenge to the sufficiency of the evidence to support his conviction for the interstate transportation of stolen goods. We then address the defendants' challenges to the sufficiency of the evidence underlying their conspiracy convictions. Finally, we consider the sentencing and restitution issues raised by each defendant.

A

When reviewing the sufficiency of the evidence, the question we ask is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original).

To establish the offense of the interstate transportation of stolen property under 18 U.S.C. § 2314, the government must prove: (1) the interstate transportation of (2) goods, merchandise, wares, money, or securities valued at $5,000 or more and (3) with knowledge that such items have been stolen, converted, or taken by fraud. See Dowling v. United States, 473 U.S. 207, 214, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985).

Biegon's sufficiency of the evidence challenge focuses solely on the jurisdictional element of the crime. This element requires that stolen goods transported in interstate commerce have a value of more than $5000. See United States v. Perry, 638 F.2d 862, 865 (5th Cir.1981)("Proof of the value of the property at the time it was stolen or at some time during its receipt, transportation or concealment is essential to conviction of the crime against the United States.")(quoting United States v. Nall, 437 F.2d 1177, 1187 (5th Cir.1971)). As we noted in Nall, "While we agree that the $5,000.00 limitation was not designed to protect those who transport stolen property of a lesser value, its effect is to leave the punishment of such persons to the several states and to make the limitation an essential part of the federal crime." Id. at 1187.

The government can prove the value of a stolen good by reference to that good's "face, par, or market value, whichever is the greatest." 18 U.S.C. § 2311. Here, Biegon argues that the government cannot rely on the "face" value of the tickets — i.e., the value written on the tickets — to prove the jurisdictional element because this value was simply "made up" and filled in by Burney. Lacking proof of the "face" value, the government, Biegon asserts, has to show that the market or par value of the stolen tickets was enough to satisfy the jurisdictional element. The tickets in this case were not securities and hence have no par value. Furthermore, Biegon contends that the government only proved that the market value of the stolen tickets was equal to $3,256 — an amount insufficient to satisfy the "$5000-or-more" jurisdictional element. Consequently, Biegon argues that the evidence was insufficient to support his conviction under 18 U.S.C. § 2314.

In contrast, the government argues that it could use the values Burney filled in on the blank tickets to prove the jurisdictional element of the crime. The government points out that these figures — although concocted by a co-conspirator — reflected the price the airlines eventually charged Dimension Travel for the passengers flying on the stolen tickets.

What constitutes the face value of a previously stolen blank airline ticket is an issue of first impression in this Circuit. Nevertheless, we do not write on an entirely clean slate. We have previously held that the value requirement for a blank money order can be met "by the face value of, or the amount received for, filled in blank money orders, or the value of the blanks in a thieves' market for blank money orders." See United States v. Wright, 661 F.2d 60, 61 (5th Cir.1981)(emphasis added)(citing United States v. Bullock, 451 F.2d 884 (5th Cir.1971)). We have also held that the "face" value of a fraudulently secured promissory note does not depend on the amount of money eventually obtained in a litigation settlement on that note. Instead, the face value is the figure written on, and the credit given for, the wrongfully obtained note. See United States v. Robinson, 553 F.2d 429, 431 (5th Cir.1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 735, 54 L.Ed.2d 761 (1978).

With these cases in mind, we turn...