U.S. v. Barel
| Decision Date | 07 October 1991 |
| Docket Number | No. 90-5457,90-5457 |
| Citation | 939 F.2d 26 |
| Parties | UNITED STATES of America, Appellee, v. Henrich BAREL a/k/a Steven Katz, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Richard A. Greenberg (argued), Newman & Schwartz, New York City, for appellant.
Michael Chertoff, U.S. Atty., Edna B. Axelrod, R. David Walk, Jr. (argued), Asst. U.S. Attys., Office of the U.S. Atty., Newark, N.J., for appellee.
Before BECKER and HUTCHINSON, Circuit Judges, and SMITH, District Judge. *
Henrich Barel (Barel), formerly known as Henry Shtakel, appeals from the judgment of conviction and sentence entered against him in the United States District Court for the District of New Jersey. The charges against Barel result from his having opened a number of bank accounts with a false social security number. A jury found him guilty of three counts of misuse of a social security number (the social security charges), in violation of 42 U.S.C.A. Sec. 408(g) (West 1983), and three counts of making false entries in the records of banks insured by the Federal Deposit Insurance Corporation (FDIC) (the false entry charges), in violation of 18 U.S.C.A. Sec. 1005 (West Supp.1991) and 18 U.S.C.A. Sec. 2 (West 1969). The district court sentenced Barel under the version of the Sentencing Guidelines in effect at the time of trial instead of the version in effect when he allegedly committed these acts. This appeal followed.
Section 408(g), the basis of the social security charges, makes criminal the intentional use of a false social security number "for any ... purpose." Since Barel intentionally gave the banks a false social security number to open the accounts, we will affirm his convictions on the social security charges. 1 We do not believe, however, that Congress intended 18 U.S.C.A. Sec. 1005 to impose criminal liability on bank customers, or that 18 U.S.C.A. Sec. 2 otherwise allows affirmance of Barel's convictions, on this record, as an aider or abetter of the crime of making false entries in bank records. Thus, we will reverse his convictions on the false entry charges. 2 As a result, we will vacate the sentence imposed by the district court and remand for resentencing.
In September, 1989, Barel was indicted on three counts of using a false social security number to open bank accounts at City Federal Savings Bank (City Federal), National State Bank (National) and Chemical Bank (Chemical), in violation of 42 U.S.C.A. Sec. 408(g). In January, 1990, a superseding indictment was returned. It charged him with the original three counts and added three counts of causing false entries to be made in the records of the same three federally insured banks, in violation of 18 U.S.C.A. Sec. 1005 (West 1976 & Supp.1991) and 18 U.S.C.A. Sec. 2 (West 1969). During pretrial proceedings Barel moved, inter alia, for dismissal of the false entry charges, contending that Sec. 1005 does not apply to bank customers. The district court denied this motion and proceeded to trial.
The case was tried to a jury. At the close of the government's evidence, Barel moved for dismissal of the social security charges on several grounds. His contentions centered on the argument that the evidence was insufficient to show that he intended to deceive the United States by using a false social security number. The district court denied this motion to dismiss, although it instructed the jury prior to deliberations that in order to convict on the social security charges the jurors would have to agree unanimously on whether Barel intended to deceive the United States, the banks or both. Barel also renewed his motion to dismiss the false entry charges, this time advancing two grounds. He contended once again that Sec. 1005 does not apply to bank customers and also raised the argument that the government had failed to prove the federally insured status of the banks beyond a reasonable doubt. The district court also denied this motion but expressed some doubt about the application of Sec. 1005 to Barel's acts. Finally, Barel moved for dismissal of the social security and false entry charges that involved Chemical, arguing that the evidence showed no account was opened there. During its deliberations, the jury asked the district court whether the counts relating to Chemical were correct in charging that Barel had opened an account there. The district court advised the jury "as a matter of law ... that the [Chemical] account was opened." Joint Appendix (App.) at 420.
Following denial of these motions to acquit, Barel called only one witness, his ex-wife's attorney. The attorney described the difficulties he had encountered in trying to collect funds that a state court had awarded Barel's ex-wife after their divorce. The attorney's testimony was brief. Neither the government nor Barel presented any further evidence. Barel did not renew his Rule 29 motion at the close of all evidence. Barel's counsel on this appeal did not represent him at trial.
The entire trial lasted only two days, and on January 31, 1990 the jury convicted Barel on all counts. Before sentencing, the government, for the first time, submitted documentary evidence in support of its contention that Barel's real purpose in using the false social security number was to deceive the United States government. Armed with this evidence, the government argued that Barel engaged in a scheme to evade approximately $740,000.00 in state and federal excise taxes on the sale of gasoline. 3
At a hearing held on May 23, 1990, Barel disputed the government's sentencing claims as to his criminal purpose and the amount of money he owed for excise taxes. The only witness to testify was an accountant Barel called to the stand. The accountant told the district court that he had examined invoices and other documents concerning Barel's business and concluded that Barel's company had paid money to the suppliers of gasoline sufficient to cover any back taxes due. The accountant estimated the gross taxes due at about $767,000.00. Barel sought to convince the district court that he did not owe any back taxes and that even if some taxes remained outstanding, it was the fault of the gasoline suppliers. The district court rejected Barel's arguments and found by a preponderance of the evidence that he had engaged in a scheme to evade excise taxes on gasoline, resulting in a loss to the state and federal governments of as much as $767,000.00. The district court then sentenced Barel to concurrent thirty-three month terms of imprisonment and also imposed a three hundred dollar special assessment against him. It followed the sentencing guidelines in effect at the time of sentencing instead of the more lenient ones in effect at the time Barel allegedly committed these offenses. On the sentencing determination, Barel questions the district court's use of the later version of the guidelines. The government has consented to application of the earlier guidelines and agrees to remand of this matter to the district court for resentencing under the earlier guidelines. Barel does not challenge the findings of fact the district court made at the sentencing hearing.
Barel, a wholesale gasoline broker, obtained a social security card and other false identification bearing the name of Steven Katz. In mid-1989, Barel used the Katz name, identification and social security number to open accounts at several New Jersey banks.
In July, Barel went to City Federal and filled out an application for a business checking account in the name of Steven Katz, doing business as Enron Oil Company. Barel used the Katz social security number to open this account. He later opened a personal account at City Federal, again using the Katz name and number.
In mid-August, Barel filled out forms and opened a business checking account at National in the name of Steven Katz, doing business as Bowman Oil Company. At the end of August, Barel went to Chemical to open a business account in the name of Steven Katz, doing business as Progress Oil Company. Barel again used Katz's social security number as part of the false identity he gave to the bank. He also made an opening deposit of $100.00 cash. Chemical officials decided to verify the information Barel provided and found that he had given a false address and telephone number. Chemical then notified Barel by mail that it would not accept his account. The bank returned his one hundred dollar "opening deposit" and followed through by refusing to accept a wire transfer from Barel's National account several days later. Chemical notified National of its problems with Barel and told local law enforcement authorities about his use of the false social security number. The security office at National contacted the Federal Bureau of Investigation (FBI). On August 29, 1989, while at National, Barel was arrested. At the time of his arrest, he was in possession of a social security card bearing the name of Steven Katz, as well as other forms of identification bearing that name.
Barel appeals from a final judgment of conviction and sentence entered in the United States District Court for the District of New Jersey on May 25, 1990. The district court had jurisdiction pursuant to 18 U.S.C.A. Sec. 3231 (West 1985). We have jurisdiction over this appeal pursuant to 18 U.S.C.A. Sec. 3742(a) (West 1985 & Supp.1991) and 28 U.S.C.A. Sec. 1291 (West Supp.1991).
The issues Barel raises on appeal concerning his guilt can be grouped into two basic categories. First, he asks us to determine whether 42 U.S.C.A. Sec. 408(g) applies to the use of a false social security number, without intent to obtain something of pecuniary value, in a transaction with a private, non-governmental, entity. In this context, he claims the jury verdict is not demonstrably unanimous in finding that he had the "intent to deceive" any...
To continue reading
Request your trial
-
U.S. v. Weidner
...to bank customers In challenging his § 1005 convictions, Mr. Wittig first invokes the Third Circuit's decision in United States v. Barel, 939 F.2d 26, 38-41 (3d Cir.1991). There, the court held that a defendant who had submitted false information about his social security number in opening ......
-
United States v. Wells Fargo Bank, N.A.
...to consider the question have extended that limitation to paragraphs two and three of the Section. See, e.g., United States v. Barel, 939 F.2d 26, 39 (3d Cir.1991); United States v. Ortiz, 906 F.Supp. 140, 144–46 & n. 2 (E.D.N.Y.1995); United States v. Edwards, 566 F.Supp. 1219, 1220 (D.Con......
-
United States v. Nguyen
...as the person who had been assigned number 3138 for some purpose and with an intent to deceive. See id. ; accord United States v. Barel , 939 F.2d 26, 34 (3d Cir. 1991) (affirming conviction where the defendant used a false name and social security number to open bank accounts); United Stat......
-
U.S. v. Thayer
...based on insufficient evidence is plain error only if the verdict "constitutes a fundamental miscarriage of justice." United States v. Barel, 939 F.2d 26, 37 (3d Cir. 1991). To the extent that Thayer's argument raises issues of statutory interpretation, we will exercise plenary review. See ......
-
Review Proceedings
...70, 80 (2d Cir. 2019) (concurrent sentence doctrine inapplicable because special assessment imposed on each conviction); U.S. v. Barel, 939 F.2d 26, 36 (3d Cir. 1991) (concurrent sentence doctrine inapplicable because total special assessment against defendant depended upon validity of each......