United States v. Bazazpour

Decision Date15 August 2012
Docket NumberNo. 10–4529.,10–4529.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Majeed BAZAZPOUR, Defendant–Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ON BRIEF:Lawrence DeLino, Jr., Akron, Ohio, for Appellant. Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: SILER, DAUGHTREY, and WHITE, Circuit Judges.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Having been found guilty by a jury on six counts of a 21–count indictment against multiple defendants, Majeed Bazazpour appeals his 240–month prison sentence, as well as aspects of his convictions for conspiracy to commit money laundering, aiding and abetting money laundering, conspiracy to commit arson, and aiding and abetting arson. Specifically, he asserts that one subsection of the federal money laundering statute, 18 U.S.C. § 1957(f)(1), is unconstitutionally vague and overbroad; that the prosecution failed to adduce sufficient evidence to support the convictions for conspiracy to commit arson, conspiracy to commit money laundering, and aiding and abetting arson; and that the prison sentence imposed “in this matter was improper, excessive [,] and an abuse of discretion.” We affirm Bazazpour's convictions, but because we conclude that the district court should not have applied a two-level sentence enhancement for obstruction of justice, we vacate defendant Bazazpour's sentence and remand this matter to the district court for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

Bazazpour, a Canadian citizen born in Iran, immigrated to Ohio in late 1996. Upon arriving in the Youngstown area, the defendant stayed for a short time with his second cousin, Cyrus Ghassab, and Ghassab's wife, Farideh Jamali, before finding his own place to live. Between that time and November 2005, Bazazpour, Ghassab, Jamali, and others were involved in various illegal acts in and around Youngstown, including conspiracy to commit mail fraud, money laundering, and arson, as well as aiding and abetting the actual commission of mail fraud, money laundering, and arson. After a lengthy trial, the jury found Bazazpour guilty of committing the following criminal acts alleged in the indictment:

Count 1 (Conspiracy to Commit Mail Fraud): Bazazpour and others conspired to use the United States mail to submit fraudulent insurance claims and receive insurance proceeds for fire damage that the co-conspirators either caused themselvesor hired other individuals to cause. As part of the conspiracy, the defendant made material misrepresentations to the insurance companies by failing to disclose prior property losses as requested on the insurance applications.

Count 2 (Conspiracy to Commit Arson of an Interstate Building): Bazazpour and others conspired to set fires or hire other individuals to set fires at buildings under the control of the conspirators and then to collect insurance proceeds by filing false claims relating to those fires.

Count 3 (Conspiracy to Commit Money Laundering): Bazazpour and others conspired to conduct financial transactions involving the proceeds obtained through unlawful activity in order to disguise the nature and source of those proceeds. Specifically, Jamali deposited into the account created in the name of Ghassab and Jamali a check from Harleysville Insurance Company in the amount of $421,062, an amount that represented the proceeds of a fraudulent insurance claim. Ghassab then transferred $54,000 of that payment to Bazazpour who deposited the check into his own account.

Count 6 (Aiding and Abetting Arson in the Commission of a Felony): Bazazpour and Ghassab set fire to the JB's Foods building in Youngstown, Ohio, in order to obtain the insurance proceeds for the damage caused by the arson.

Count 13 (Aiding and Abetting Mail Fraud): Bazazpour used the United States mail to file a claim for loss as a result of the fire that he set at the JB's Foods building in Youngstown, Ohio.

Count 16 (Aiding and Abetting Money Laundering): Bazazpour deposited a check for $54,000 into his bank account knowing that the money was derived from unlawful activity.

The district court sentenced the defendant to 60 months in prison for conspiring to commit mail fraud, 60 months for conspiring to commit arson, 120 months for conspiring to commit money laundering, 120 months for aiding and abetting mail fraud, and 120 months for aiding and abetting money laundering. Each of those sentences was ordered to run concurrently with the others. The district judge also sentenced Bazazpour to a consecutive 120–month sentence for aiding and abetting arson, resulting in an effective prison sentence of 240 months, or 20 years. Additionally, the district judge ordered the defendant to serve three years of supervised release, to pay a $600 special assessment, and to make restitution to three insurance companies in a total amount of $778,648.64.

II. DISCUSSION
A. Challenge to the Constitutionality of the Money Laundering Statute

On appeal, Bazazpour first seeks to overturn his conviction of aiding and abetting money-laundering, alleging that the definition of “monetary transaction” in 18 U.S.C. § 1957(f)(1), part of the federal money-laundering statute, is unconstitutionally vague and overbroad. In mounting this challenge, he contends that the statute improperly dispenses with the necessity of proving a defendant's criminal intent in depositing money into a federally-insured bank account.

[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); United States v. Haun, 90 F.3d 1096, 1101 (6th Cir.1996). Because Bazazpour did not raise this challenge in the district court, however, we may review his claim of constitutional deficiency for plain error only. Consequently, before we can correct such an error, we must find that there is (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ Johnson v. United States, 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Johnson, 520 U.S. at 467, 117 S.Ct. 1544 (citation and internal quotation marks omitted); United States v. Keller, 665 F.3d 711, 714 (6th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 2714, 183 L.Ed.2d 72 (2012).

In 18 U.S.C. § 1957(a), Congress chose to impose criminal liability upon an individual who “knowingly engages or attempts to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified unlawful activity.” Subsection (f)(1) of that same statute further defines the term “monetary transaction” to mean, in relevant part, “the deposit, withdrawal, transfer, or exchange, in or affecting interstate or foreign commerce, of funds or a monetary instrument ... by, through, or to a financial institution....” Bazazpour complains, however, that the statute transforms an innocent act—depositing a check into one's own account—into a crime. Although the defendant concedes in his brief that the transfer, exchange, and withdrawal of funds from a bank account are arguably deceptive acts indicative of an attempt to launder money, he maintains that criminalizing a simple deposit of funds in a readily identifiable account unconstitutionally eliminates the criminal intent element of the crime of money-laundering.

In so arguing, however, Bazazpour reads the relevant statute selectively. It is no doubt accurate to assert that simply depositing a check into one's own bank account is a relatively common action that carries with it no indicia of criminality. The federal money laundering statute does not, however, criminalize simply depositing a check into an account. As made explicit by 18 U.S.C. § 1957(a), criminal liability attaches to such an otherwise innocent act when, and only when, the government proves beyond a reasonable doubt that the defendant knowingly engaged in such a transaction involving “criminally derived property of a value greater than $10,000” that “is derived from specified unlawful activity.” By attaching such a knowledge requirement to the “monetary transaction,” the statute defines “the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender, 461 U.S. at 357, 103 S.Ct. 1855.See also United States v. Baker, 19 F.3d 605, 614 (11th Cir.1994) (Section 1957 is constitutional as applied to defendants who deposited into their own bank accounts funds derived from their own criminal fraud activities.). Thus, there is no merit to Bazazpour's constitutional challenge to 18 U.S.C. § 1957(f)(1).

B. Challenge to the Sufficiency of the Evidence

The defendant next contends that the prosecution failed to adduce sufficient evidence to establish his guilt of conspiracy to commit money-laundering, conspiracy to commit arson, and aiding and abetting arson. As in any other challenge to the legal adequacy of the convicting evidence, we must determine whether, viewing the trial testimony and exhibits 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In doing so, however, we may not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our...

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