U.S. v. Schardar, 86-5872

• Decision Date: 01 August 1988
• Docket Number: No. 86-5872,86-5872
• Citation: 850 F.2d 1457
• Parties: 26 Fed. R. Evid. Serv. 824 UNITED STATES of America, Plaintiff-Appellee, v. Gambize SCHARDAR, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1457

850 F.2d 1457

26 Fed. R. Evid. Serv. 824

UNITED STATES of America, Plaintiff-Appellee, v. Gambize SCHARDAR, Defendant-Appellant.

No. 86-5872

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Aug. 1, 1988.

Ted Sakowitz, Federal Public Defender, Richard C. Klugh, Jr., Asst. Fed. Public Defender, Miami, Fla., for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., Norman A. Moscowitz, Linda Collins Hertz, Sonia Escobio O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH, JOHNSON and EDMONDSON, Circuit Judges.

EDMONDSON, Circuit Judge:

Defendant-appellant Gambize Schardar appeals his criminal convictions on wire fraud, making and uttering false bills of lading, and interstate transportation of property taken by fraud. He asserts that divers errors occurred at his trial. We affirm his convictions.

The transactions giving rise to Schardar's criminal convictions involving wire fraud and false bills of lading were similar. Schardar, a commodities broker and exporter working out of Miami, would arrange to export a commodity to a purchaser abroad. As is usual in such foreign sales transactions, payment was arranged under a letter of credit. Once the arrangements were finalized, Schardar then would present false invoices and bills of lading to the bank involved, thereby receiving payment under the letter of credit for goods that were never shipped.

The criminal conduct for which Schardar was convicted arose out of five separate transactions with four different parties. In 1979, Schardar agreed to sell 860 truck tires to the Kashfia family in Iran for approximately $240,000. Although Schardar presented documents to the bank showing that the ordered goods had been shipped and thereby collected his payment, in reality the shipment did not conform to the agreement: 140 truck tires were sent, along with another 1240 radial car tires that the Kashfias had not ordered. The Kashfias agreed to pay for and keep the car tires, and Schardar agreed to ship the missing 720 truck tires.

The second transaction also involved the Kashfia family. While the Kashfias were still expecting the missing tires, they agreed to purchase an additional 300 truck tires and 50 tons of bronze tubing. Schardar presented documentation to the bank obliged to pay the letter of credit and received over $220,000. This documentation, as well as the documents sent to the Kashfias regarding the missing tires, were all fraudulent, mentioning non-existent ships and shipping companies.

In 1983, in the third transaction at issue, Schardar arranged to sell eggs to the Al-Harbi Trading Co. for $110,000. Once again Schardar presented shipping documents to the bank to collect his payment. The company Schardar listed as supplier was non-existent, as was the freighter on which the eggs were allegedly shipped. There was also no freight forwarder in New York City going by the name of the individual listed in Schardar's documents; the alleged address of this individual was also non-existent.

In autumn 1983 the fourth criminal transaction occurred. Schardar arranged to sell 10,000 cases of apples to Gulf Foodstuffs in Qatar. Schardar collected $160,000 from the paying bank through the presentation of false invoices and other documents; apparently no apples were ever shipped.

The fifth fraudulent transaction, which occurred in the United States, is somewhat different. Schardar arranged to purchase Persian carpets from New York merchant Korhani. When a trucker arrived to transport the carpets from New York to Miami, Korhani was disturbed that Schardar, in completing the shipping documents, listed himself, Schardar, as both shipper and receiver. When Korhani refused to accept a check drawn on a Panamanian bank, Schardar wrote Korhani a check on a Florida bank post-dated for the following day. Korhani took the check to his bank the next day and discovered that the account on which the check was drawn had been closed over a month earlier. Although he then experienced some difficulty in retrieving his merchandise from the carrier because it was Schardar's name that appeared on the transportation documents as shipper, Korhani did succeed in getting his rugs back.

In August 1984 appellant Schardar was indicted on nine counts of wire fraud, three counts of making false bills of lading, three counts of uttering such false bills, and one count of interstate transportation of fraudulently obtained property. After a two-week trial in March and April 1986, the district court dismissed five of the counts charged against appellant. The jury found Schardar guilty on the remaining eleven counts. Schardar was then sentenced to a total of twenty-five years in prison; a stand-committed fine in the amount of $20,000 was also imposed.

Schardar alleges that the district court improperly denied his motions for continuance. We review such a claim by determining whether the district court abused its discretion in denying a continuance. See United States v. Garmany, 762 F.2d 929, 935-37 (11th Cir.1985), cert. denied, 474 U.S. 1062, 106 S.Ct. 811, 88 L.Ed.2d 785 (1986).

The record indicates that several continuances were granted because defense counsel was involved in other trials. ¹ The record also indicates that defense trial counsel Ken Lange had represented defendant Schardar during the grand jury investigation and had officially entered the case as counsel about six months prior to the trial. Inasmuch as appellant Schardar's claim of improper denial of continuance implicates a claim of ineffective assistance of counsel due to lack of adequate preparation, we note that the record further indicates that the district court was on the alert for problems that might arise regarding defense counsel's preparation. The district court observed early on in the trial that counsel Lange's opening statement and cross-examination of the first government witness indicated that Lange was prepared and was proceeding competently in the case. The district court also commented on several later occasions that counsel Lange's performance indicated a good grasp of the facts of the case and that Lange was giving an able in-court performance. In light of all these facts, we cannot say that the district court abused its discretion in denying Schardar's request for a continuance. ²

Appellant Schardar also challenges the sufficiency of the evidence on nine of the counts of which he stands convicted. In reviewing this claim, we view the evidence and the inferences to be drawn from it in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc ), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Appellant urges that the government's evidence fails because the government did not call representatives of Al Harbi Trading Co. or Gulf Foodstuffs, Qatar, the victims, to testify regarding the fraudulent egg and apple transactions. Evidence introduced did prove, however, that the documents that Schardar presented to the banks were fraudulent. As regards the transaction with Al Habri, Schardar's named egg supplier was non-existent, as were the freight forwarder and the ship supposedly carrying the egg cargo. The government also produced a witness to whom Schardar had admitted that he had never shipped the eggs. As regards the deal with Gulf Foodstuffs, it was shown at trial that Schardar's named fruit packer did not exist, that the name and address of the freight forwarder were concocted, that the ships and shipping lines named on the bills of lading were non-existent, and that no apples were shipped from San Diego during the pertinent period.

"A wire fraud offense under section 1343 requires proof of two essential elements: (1) a scheme to defraud; (2) use of, or causing the use of, wire communications in furtherance of the scheme." United States v. Herron, 825 F.2d 50, 53-54 (5th Cir.1987). By its evidence, the government proved the elements of this offense. There was no need for the testimony of the victims.

Appellant also contends that the district court should have granted an acquittal on count 1 of the indictment that alleged a general scheme of fraud involving the various individual transactions. Schardar argues that the district court improperly allowed the jury to consider dismissed counts 5 through 9 with relation to count 1, thereby vitiating his conviction on count 1.

Counts 5 through 9 involved instances of wire fraud related to the apple transaction. At trial the defense objected to the admission of a video deposition of the only government witness able to authenticate the telexes related to counts 5 through 9. ³ The district court reluctantly sustained the defense's objection and dismissed counts 5-9. The fraudulent apple transaction was still at issue with regards to several counts involving fraudulent bills of lading. Because the subject matter of count 1 was thus still relevant to other charges under trial, the district court did not act improperly in refusing to grant an acquittal on count 1.

Appellant also alleges that the government presented insufficient evidence to convict him under 18 U.S.C. sec. 2314 regarding the interstate transportation of the oriental rugs fraudulently obtained from Korhani. Because Korhani reclaimed the rugs before they crossed a state line, Schardar claims that no loss occurred and that the goods did not move in interstate commerce.

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