U.S. v. Mizyed, 90-1230

• Decision Date: 18 March 1991
• Docket Number: No. 90-1230,90-1230
• Citation: 927 F.2d 979
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ali I. MIZYED, also known as Many Sabaty, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 979

927 F.2d 979

UNITED STATES of America, Plaintiff-Appellee, v. Ali I. MIZYED, also known as Many Sabaty, Defendant-Appellant.

No. 90-1230.

United States Court of Appeals Seventh Circuit.

Argued Oct. 29, 1990.

Decided March 18, 1991.

Sheila Finnegan, Lisa K. Osofsky, Barry R. Elden, Asst. U.S. Attys., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Chris Averkiou, Chicago, Ill., for defendant-appellant.

Before CUDAHY, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Ali I. Mizyed appeals his conviction on six counts of mail fraud in violation of 18 U.S.C. Sec. 1341. We affirm.

I.

Mizyed was the manager of J & J Foods, a small grocery store on Chicago's south side. In 1985 and 1986 he developed and engaged in a scheme to supplement his income by falsely redeeming large quantities of coupons as if they were submitted to him by customers at his store.

The coupons were issued by manufacturers for consumer use in buying their products at various retailers. The retailer would then send the coupons directly to the manufacturer, or to a coupon clearing house which would send the coupons to the manufacturer for a percentage of the handling fee. The manufacturer or coupon clearing house would then send a reimbursement check to the retailer for the amount specified on the coupons plus a fee for handling the coupons.

Mizyed was responsible for the daily operations of J & J Foods on behalf of an absentee owner, Isa Hamdan. J & J Foods stopped accepting coupons in May 1985. Mizyed, along with a man named Nasser, devised a scheme to submit coupons to manufacturers and coupon clearing houses, representing them as coupons redeemed by customers of J & J Foods, and to split the proceeds of any money they received.

Manufacturers and coupon clearing houses determined the validity of coupons by two methods: 1) physical inspection--to make sure coupons were not in mint condition, washed and dried to appear used, or mass cut by one person at one time; and 2) requiring retailers to fill out questionnaires or service agreement contracts that detailed, among other things, the size of the store, number of cash registers, yearly sales volume, and the name of the owner. Mizyed submitted service contracts and questionnaires to several clearing houses and manufacturers, all containing false information. The pattern was to grossly exaggerate the size and sales volume of the store, and sign it with a false name. Some of the manufacturers and clearing houses refused to make any payments, either because they suspected the coupons were mass cut or washed and dried, or because too many coupons were submitted to have possibly come from the store, despite Mizyed's exaggeration of its size. Others sent checks for a nominal portion of the coupons submitted. But one clearing house, Coupon Clearing Service (CCS), sent checks totalling more than $22,000 over the course of the scheme.

On December 3, 1986, and January 2, 1987, Mizyed was interviewed by FBI agents. On both occasions he confessed, admitting that he submitted questionnaires with false information through the mail, that J & J Foods did not accept coupons, and that he split the proceeds with Nasser. Mizyed alleged that the FBI agents told him on December 3, 1986, that "It would be better for you to talk to us. Otherwise we will take you in." The FBI agents deny making that statement.

Mizyed was indicted on eight counts of mail fraud on June 27, 1989. A superseding indictment was filed July 21, 1989. He pleaded not guilty. On August 22, 1989, Mizyed filed a motion to suppress his confession to the FBI agents, alleging that it was not made voluntarily. Judge Shadur denied that motion on September 8, 1989.

At trial, the government introduced Mizyed's confession, along with expert testimony on handwriting and fingerprints that linked Mizyed to the false questionnaires. Representatives of manufacturers and coupon clearing houses testified as to their practice in checking coupon submissions, and their resolution of the coupons submitted by J & J Foods. Mizyed put on three witnesses (two relatives and a close friend) who attested to his law abiding character and his good reputation in the community.

Mizyed was convicted on six counts of mail fraud on November 20, 1989. His motion in arrest of judgment, alleging that the indictment did not describe the offense of mail fraud with the required specificity, was denied. He was sentenced on January 23, 1990, to 60 days work release and five years probation. ¹ As a condition of probation, Mizyed was to file past due tax returns, perform 300 hours of community service, and make restitution in the amount of $25,115.

II.

Mizyed raises four issues on appeal--the sufficiency of the indictment, the denial of the motion to suppress, the sufficiency of the evidence, and the validity of the restitution order. None of these issues provides a basis for reversal.

The indictment is alleged to be insufficient because it does not identify the victims of the mail fraud. Mizyed relies on a century-old case, United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516 (1888), which held that merely restating the terms of the statute in the indictment was insufficient. Hess does not stand for the proposition that a victim of the alleged mail fraud must be identified in the indictment. Rather, Hess makes the obvious point that the indictment must include "such a statement of the facts and circumstances as will inform the accused of the specific offense ... with which he is charged." Id., 124 U.S. at 487, 8 S.Ct. at 573. We have reviewed the indictment, and find that it properly details the factual circumstances that caused Mizyed to run afoul of the law. Thus, the government properly met "the object of the indictment," which is, "to furnish the accused with such a description of the charge against him as will enable him to make his defence ...". Id. This court previously has affirmed the sufficiency of indictments which do not identify specific mail fraud victims by name. See e.g. United States v. Barber, 881 F.2d 345, 348-49 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990) ("It is true that the indictment does not allege an actual monetary or economic loss to any insurance company. However, it is not necessary that an indictment charging mail fraud contain such an allegation.") Similar to Barber, Mizyed's indictment charged him with defrauding various coupon clearing houses and manufacturers, and that is sufficient.

Mizyed alleged in his motion to suppress that FBI agents who told him it would be better for Mizyed to talk to them, and that otherwise they would take him in, "excited hope and fear" in Mizyed, and thereby "induced" his...