U.S. v. Rajwani

• Decision Date: 16 January 2007
• Docket Number: No. 05-10648.,05-10648.
• Citation: 476 F.3d 243
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nina K. RAJWANI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

476 F.3d 243

UNITED STATES of America, Plaintiff-Appellee, v. Nina K. RAJWANI, Defendant-Appellant.

No. 05-10648.

United States Court of Appeals, Fifth Circuit.

January 16, 2007.

Delonia Anita Watson (argued), Bret E. Helmer, Renee Harris Toliver, U.S. Attorney's Office Northern District of Texas, Fort Worth, TX, for U.S.

David William Coody (argued), Dallas, TX, for Rajwani.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

In this direct criminal appeal, the defendant challenges her conviction and sentence on multiple grounds. We AFFIRM the conviction but conclude that the extent of the district court's upward departure on the defendant's sentence was excessive. For the following reasons, we VACATE the defendant's sentence and REMAND to the district court for resentencing.

I.

The Defendant-Appellant, Nina Rajwani ("Rajwani"), a citizen of Canada, was convicted on three counts of aiding and abetting wire fraud in violation of 18 U.S.C. §§ 1343 and 1342. The government produced proof that the defendant participated in a scheme beginning in June 2004 and continuing until September 2004, to persuade Ruth Scott ("Scott"), an elderly United States citizen residing in Fort Worth, Texas, to wire money in excess of $60,000 from her Washington Mutual bank account in Texas to Rajwani's Bank of America account in Washington on at least 9 separate occasions. Scott transferred money following telephone calls from a man identifying himself as "Joe Calender" informing her that she had won a fictitious "Spanish Lottery." She agreed to send the money to Calender in exchange for his assistance in helping her collect her winnings.

After Scott's family became suspicious, the FBI was notified and agents arranged for a transfer of "bait" money to Rajwani's bank account. Rajwani went to a Bank of America branch in Liden, Washington and attempted to withdraw this bait money from the account. The bank's assistant manager, who had been alerted to contact authorities if Rajwani came into the branch, attempted to stall Rajwani until the police arrived. After waiting a few minutes, Rajwani excused herself from the bank building claiming that she would return to the bank after retrieving an item from her car. Instead she drove away immediately.

Several days later, Calender contacted Scott again and asked her to send another $1,000 to Rajwani. Despite admonitions from the FBI, Scott complied and wired the money into a separate Washington Mutual Bank account opened by Rajwani earlier in the month. As Rajwani was attempting to enter the country from Canada on the day after Scott's transfer, she was detained by customs officials. At the time of her arrest, customs agents found a piece of notepaper in Rajwani's purse with Scott's name, address, and phone number written on it. She also had a handwritten note in her purse with the name and address of Mary Orofino. Orofino, an 85-year-old woman from Oceanside, California, testified at Rajwani's trial that she had also been the target of a similar fraudulent lottery scheme.

In addition to Orofino, one other victim of the transfer scheme testified at Rajwani's trial. Florence Jackson, an 82-year-old retiree, testified that, like Scott, she was contacted by Joe Calendar and told to send money to cover lottery taxes. At Calendar's direction, Jackson twice wired money via Western Union to Nina Rajwani and ultimately lost $66,027.23 as a result of the scheme.

Rajwani's defense was that she believed her banking activities were in support of a friend's legitimate travel business. In support, she offered the testimony of Farida Bhimji. Bhimji, a friend of Rajwani's, testified about a conversation that she overheard at Rajwani's house in 2003 between Rajwani and a man named Nizu Remtullah. According to Bhimji, Rajwani asked Remtullah when he would repay $6,000 she had loaned him. Remtullah told Rajwani of his new business venture selling travel packages and asked Rajwani to help him by opening a bank account in the United States. Remtullah explained that because he had a criminal record, he could not cross the border to do it himself. Rajwani agreed to open the bank account to help Remtullah get the money to pay back the $6,000. Another defense witness, Shiraz Kaba, would have testified to overhearing this same conversation but the judge excluded the testimony on the basis of a hearsay objection by the government.

At the close of the case, the jury convicted the defendant on all three counts.

Before sentencing Rajwani, the Presentence Report ("PSR") calculated Rajwani's base offense level at 7 and applied a number of enhancements. The PSR applied a 2 level enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 3A1.1(b)(1) because the defendant knew or should have known that the victims were unusually vulnerable because of their age as well as a 10 level increase under U.S.S.G. § 2B1.1(b)(1)(F) because the total loss amount was 137,077.23. The PSR also found that after the defendant's arrest, money was withdrawn from the defendant's bank account and deposited into a bank account belonging to her sister. This attempt to hide illegal proceeds triggered a recommended 2 level enhancement under U.S.S.G. § 3C1.1. The total offense level of 21, with a criminal history category of I, produced a Guidelines sentencing range of 37-46 months. The PSR also recommended an upward departure.

The district court adopted the findings and conclusions of the PSR. Further, the court found that an upward departure was warranted because the Guidelines range did not adequately address the seriousness of the offense (U.S.S.G. § 2B1.1, Comment 19) and because the circumstances in the case were present to a degree substantially in excess of that which ordinarily would be involved in a typical offense of this kind (U.S.S.G. § 5K2.0(a)(3)). The judge sentenced the defendant to a term of 120 months on each count, to be served concurrently.

The court acknowledged that the sentence was above the applicable advisory Guidelines range but identified the effect of the financial loss on the elderly victims and the emotional impact on the victims as justification for the upward departure. The judge found that the fraudulent scheme caused at least some of the women to lose their life savings and that many of the women who were victimized would never be able to recover financially because of their advanced age. As a result of these circumstances, the judge continued, the women would inevitably be affected in their emotional well-being. In particular, the court observed that Ms. Scott had suffered from depression since the fraudulent scheme and had been unable to sleep through the night as a result of her anxiety about the incident.

Rajwani raises four issues on appeal: (1) that the evidence was insufficient to establish that she knowingly aided and abetted the wire fraud scheme perpetrated by the man calling himself Joe Calender; (2) that the district court abused its discretion in excluding testimony from defense witness Kaba concerning the conversation the witness overheard; (3) that the district court clearly erred in applying the vulnerable victim enhancement because the record did not show that Rajwani could have known of the elderly status of the victims; and (4) that the district court abused its discretion by imposing a 120 month sentence-nearly triple her calculated Guidelines range. We consider each issue below.

II.

Rajwani first argues that the district court erred in failing to grant her motion for judgment of acquittal on all charges based on her argument that the evidence was insufficient to establish her knowledge of the illegal scheme.

Rajwani's sufficiency of the evidence claim is reviewed de novo and this court considers the entire record in its review of sufficiency challenges.¹ When reviewing the sufficiency of the evidence, this court views all evidence, whether circumstantial or direct, in the light most favorable to the verdict, including all reasonable inferences.²

To establish a violation of the wire fraud statute, 18 U.S.C. § 1343, the government must prove: (1) a scheme or artifice to defraud and (2) the use of wire communications in furtherance of the fraudulent scheme.³ Proof of a scheme to defraud requires that the government show fraudulent activity and that the defendant had a conscious knowing intent to defraud.⁴ As Rajwani correctly points out, the propriety of her conviction turns on whether the evidence permitted the jury to find beyond a reasonable doubt that she knew of the fraudulent misrepresentations being made by Joe Calendar and that she intended to be part of a scheme to defraud Ruth Scott.

The most direct evidence of Rajwani's knowledge of and participation in the scheme were the handwritten notes the customs agents found in her purse recording the names and addresses of two victims. In addition, the irregular nature of the transactions and the machinations the defendant followed to recover funds in the United States are probative of her guilty knowledge. The unorthodox procedures included:

• The practice of personally crossing the border and withdrawing the funds rather than having the U.S. bank simply wire the funds to the defendant's friend or to the defendant herself in Canada;

• Opening multiple bank accounts for the different victims' deposits rather than having a single account;

• Making trips to various banks on nine different days, each within one or two days of the victim's deposits to empty the account and recover the funds;

• Fleeing from the bank on September 22, 2005 after the bank manager attempted to stall the defendant.

Rajwani was not inexperienced in business affairs. She served as an independent contractor for a financial services company in Canada and as a clerical worker for an importing company. The...