U.S. v. Dadi

• Decision Date: 20 December 2000
• Docket Number: No. 99-20695,99-20695
• Citation: 235 F.3d 945
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. ALI REZA DADI, also known as Raymond Dadi, Defendant-Appellant-Cross-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 945

235 F.3d 945 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. ALI REZA DADI, also known as Raymond Dadi, Defendant-Appellant-Cross-Appellee.

No. 99-20695

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

December 20, 2000

[Copyrighted Material Omitted] Appeals from the United States District Court for the Southern District of Texas

Before KING, Chief Judge, CUDAHY¹, and WIENER, Circuit Judges.

CUDAHY, Circuit Judge:

On February 23, 1999, a grand jury charged that Ali Reza Dadi, Homa Dadi (his sister) and Siamak Mackvandian entered into an agreement among themselves and others to execute a scheme to defraud federally insured financial institutions. Dadi was convicted and sentenced to serve 84 months in prison. He appeals and we affirm.

I.Factual and Procedural Background

The 17-count superseding indictment charged Ali Reza Dadi with one count of conspiracy, in violation of 18 U.S.C. § 371; one count of aiding and abetting bank fraud, in violation of 18 U.S.C. § 1344; and 15 counts of aiding and abetting the conduct of monetary transactions with criminally derived property, in violation of 18 U.S.C. § 1957. A jury trial was held in the Southern District of Texas, Houston Division, and on March 26, 1999, the jury found Dadi guilty on all counts. On April 16, the district court denied Dadi's post-verdict motion for a judgment of acquittal and then ordered the preparation of a pre-sentence investigation report (PSR). In carrying out that task, the probation officer grouped the offenses and based Dadi's offense level on the Sentencing Guideline applicable to a violation of the money laundering statute, 18 U.S.C. § 1957. Under that Guideline, Dadi's base offense level was 17. Four levels were then added under U.S.S.G. § 2S1.2(b)(2) for the amount of money derived from the bank fraud (more than $600,000). Four additional levels were added since Dadi was an organizer or leader in the offense which involved more than five participants. See U.S.S.G. § 3B1.1(a).

In addition, Dadi had four prior convictions, giving him six criminal history points. Further, because Dadi committed this offense while awaiting designation to a prison facility on a prior obstruction of justice conviction, two more points were added to his criminal history score under U.S.S.G. § 4A1.1(d). Given his offense level of 25 and criminal history category of IV (based on his eight criminal history points), Dadi's imprisonment range was 84 to 105 months.

Before sentencing, the government filed a notice of intent to enhance the sentence for committing the offense while on release on another offense (18 U.S.C. § 3147 and U.S.S.G. § 2J1.7) but the district court rejected this enhancement. On July 12, the district court sentenced Dadi to serve 84 months in prison, followed by a five-year term of supervised release. The court also ordered Dadi to pay $161,239 in restitution and $1,700 in special assessments. The clerk entered a notice of appeal on Dadi's behalf, and a federal defender was appointed to represent him on appeal. The government cross-appealed the district court's rejection of the § 2J1.7 enhancement.

Viewing the facts in the light most favorable to the verdict, we will attempt to describe the multifarious scheme concocted by Dadi and his co-conspirators. They had access to numerous bank accounts into which they deposited counterfeit checks. The various parties to the conspiracy later withdrew funds from these accounts to use for their own benefit. The process began when Dadi persuaded Yvonne and Yvette Reyes, his wife's cousins, to allow him to use the bank account of their deceased mother, Stella Reyes. Dadi offered to pay the sisters $10,000 for the use of Stella's account at Texas Commerce Bank. He later deposited a counterfeit check in the amount of $95,728 into that account. That money was later withdrawn, re-routed through the account of one of Dadi's confederates and then in the form of cash dropped into Dadi's pocket.

Dadi also deposited counterfeit checks into the bank accounts of Southwest Oil Company and N&M Petrochemical Company, which were maintained at Texas Commerce Bank and Highlands Bank, respectively. Those accounts had been opened by Naser Khayambashi. On May 30, 1997, a counterfeit check for $130,000, drawn on Gillman Auto Group's account at Nationsbank in North Carolina, was deposited into the Southwest Oil account at Texas Commerce Bank. On June 5, a $77,650 counterfeit Gillman check was deposited into the same account.

A check for $50,000 was later drawn on the Southwest Oil account, payable to Siamak Mackvandian, who used the proceeds to purchase a Texas Commerce Bank check for $41,000 payable to Logistic Express.² This check was signed by Khayambashi.³ Mackvandian deposited that check into his Logistic Express account at Wells Fargo Bank, and---two days later---issued a check drawn on that account for $30,000, payable to Dadi. Dadi used the proceeds of this check to purchase a Wells Fargo cashier's check in the amount of $20,500, which he deposited into his Frost National Bank account. Later, Mackvandian and Dadi issued a check for $4,000, drawn on the Wells Fargo Logistic Express account, payable to Mackvandian. The proceeds were provided to Dadi.

A check was drawn on the N&M Petrochemical account (into which counterfeit checks had been deposited) for $52,000, payable to Homa Dadi, who deposited the check into her Coastal Banc account. The drawee was designated in Dadi's handwriting. The following day, Dadi and Homa Dadi issued a check drawn on N&M Petrochemical for $40,000, payable to Dadi. Dadi then deposited that amount into his Frost National Bank account. Later, Dadi and Homa Dadi drew a check on Homa Dadi's Coastal Banc account for $1,500, payable to Dadi.

Dadi issued a check for $9,500, payable to Yvette Reyes. Seven days later, Dadi issued three checks payable to Yvette Reyes: one for $9,000 and two for $16,000. Yvonne and Yvette Reyes used these funds to purchase a house for the use and benefit of Dadi's family. Dadi and his wife Carmen later sold the house without the knowledge of the Reyes sisters. The following month, a counterfeit check drawn on "Southern Polymer" for $95,728 was deposited into the account of Stella Reyes at the Texas Commerce Bank; Dadi allegedly made this deposit.⁴ Later that month, Dadi and Mackvandian issued a check for $42,500, drawn on the Stella Reyes account and payable to Mackvandian, who deposited this check into his account at the Frost National Bank. Mackvandian then issued a check drawn on that account payable to "cash" and used the proceeds to purchase a cashier's check payable to All American Delivery. This check was deposited into Mackvandian's All American Delivery account at Bank United. Mackvandian later used the proceeds to purchase a cashier's check for $25,000 payable to Logistic Express and deposited that into the Wells Fargo Bank Logistic Express account. He then drew a $24,5000 check on this account and gave the proceeds to Dadi.

The $95,728 deposit into the Stella Reyes account was the basis for the charge of bank fraud. The checks drawn against the counterfeit funds in amounts exceeding $10,000 were the basis for the money laundering violations.

II.Sufficiency of the Evidence

In determining whether the evidence was sufficient to support a conviction, we review all the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Aubin, 87 F.3d 141, 144 (5th Cir. 1996); United States v. McDow, 27 F.3d 132, 135 (5th Cir. 1994) (also noting that the reviewing court must "accept all reasonable inferences which tend to support the jury's verdict"). "The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence." United States v Bermea, 30 F.3d 1539, 1551 (5th Cir. 1994), cert. denied, 513 U.S. 1156 (1995).

Dadi first argues that there was insufficient evidence to sustain a conspiracy charge. Under 18 U.S.C. § 371, the government must prove that (1) two or more persons conspired to pursue an unlawful objective; (2) the defendant knew of the unlawful objective and voluntarily agreed to join the conspiracy with the intent to further the objective; and (3) one or more of the members of the conspiracy committed an overt act in furtherance of the objective of the conspiracy. See United States v. Pettigrew, 77 F.3d 1500, 1519 (5th Cir. 1996); United States v. Campbell, 64 F.3d 967, 975 (5th Cir. 1995). The government must prove the same degree of criminal intent as is necessary for proof of the underlying substantive offense. See United States v. Bordelon, 871 F.2d 491, 493-94 (5th Cir.), cert. denied, 493 U.S. 838 (1989). In Pettigrew, all the evidence pointing toward the agreement and intent elements of the crime was circumstantial. The court affirmed the conviction because the evidence was such that a rational juror could infer both these elements of the offense. See Pettigrew, 77 F.3d at 1519.

Dadi argues that here there was no evidence of an agreement, citing Mackvandian's testimony that there was no agreement to defraud a bank, and that he was unaware that any of the checks involved in the scheme were counterfeit. Dadi also cites the testimony of Yvette Reyes that she never agreed to defraud a bank. But these disclaimers must be weighed against all the evidence of activity from which an unlawful agreement may be inferred.

The government, of course, contends that the evidence indicating a conspiracy outweighs Mackvandian's and Yvette Reyes' disclaimers. Several pieces of evidence support this argument: for example, Dadi and Khayambashi had a close relationship; Dadi recommended...