US v. Haber

• Decision Date: 24 May 2001
• Docket Number: No. 99-4088,BEN-ZION,99-4088
• Citation: 251 F.3d 881
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AVRAHAMHABER, Defendant-Appellant,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 881

251 F.3d 881 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AVRAHAM BEN-ZION HABER, Defendant-Appellant,

No. 99-4088

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

May 24, 2001

Appeal from the United States District Court for the District of Utah (D.C. No. 95-CR-200-S) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Submitted On The Briefs: Michael G. Katz, Federal Public Defender, and Jenine Jensen, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Paul M. Warner, United States Attorney, Scott J. Thorley, Assistant United States Attorney, and Mark Y. Hirata, Assistant United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

Before SEYMOUR, BALDOCK and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.

Following a jury trial, Avraham Ben-Zion Haber was convicted of mail fraud in violation of 18 U.S.C. 1341 and wire fraud in violation of 18 U.S.C. 1343. The district court sentenced him to forty-six months in prison, followed by three years of supervised release. Mr. Haber raises five arguments on appeal, claiming the district court committed reversible error by (1) denying his motion for acquittal on fraud claims related to disability insurance; (2) failing to give a jury instruction on unanimity; (3) failing to have the court reporter transcribe certain bench conferences; (4) imposing a sentence enhancement for abusing a position of trust; and (5) increasing his base offense level based on its finding that the "intended loss" from his offenses exceeded $800,000. We affirm the conviction and sentence.¹

I

Mr. Haber, a Utah resident, was born and raised in Israel. In 1992, he told Eugenia and Jafar Chafi, friends who also lived in Utah, that there was a great deal of building construction going on in Israel. He explained to them that he was the exclusive distributor for several window and door manufacturers and that he had many important contacts with Israeli architects, developers and builders of upscale high-rises and condominiums. Mr. Haber proposed that the Chafis invest in an export business that he would form to sell windows and doors in Israel. They agreed, and signed a contract with Mr. Haber to form a company called Visions International. Mr. Haber was to own a seventy percent interest, and the Chafis would invest $45,000 in return for a thirty percent interest.

In the agreement, Mr. Haber promised to incorporate Visions International in Utah and register it in Israel. He represented to the Chafis that their money would be used to open a corporate bank account in their name in Israel, which he claimed required a minimum opening deposit of $12,000, and to retain Israeli legal counsel and an accountant. Mr. Haber agreed to be responsible for all Israeli business operations and promised to secure orders for the windows and doors from his existing Israeli contacts, to market the products and to seek new business contracts. Mr. Haber represented to the Chafis that the Visions International products had already been tested and approved for sale by the Israeli government.

Over the next few months, Mr. Haber told the Chafis that Visions International had supplied the windows and doors for a major building project in Israel, was shipping thousands of doors and windows to Israel for installation, was making substantial profits, and had $1 million in its bank account. He also told them he planned to open a window and door assembly factory in Israel, and he represented that he was familiar with the incentives and subsidies available from the Israeli government to assist in securing the factory site. From August 1992 until October 1993, the Chafis gave Mr. Haber a total of $137,000. He told them this money would assist in operating the business and securing a factory site, and he increased their ownership in Visions International to fifty percent in return.

The Chafis began to question Mr. Haber in early 1993 about how their money was being spent and when they would begin receiving returns on their investment. He told them the profits had to remain in an Israeli bank account in order to pay taxes and to obtain Israeli assistance in building the factory. In the spring of 1993, the Chafis traveled to Israel to tour the factory site. Mr. Haber continually put off meeting with them and claimed to be unable to give them directions to the factory site. Eventually the Chafis returned home.

Jeanne Corwin owned a marketing business in North Carolina and traveled frequently to Israel. Mr. Haber became acquainted with her while in Israel in late 1992. He told her that he owned Visions International in partnership with an individual investor who owned ten percent and a major window manufacturer that owned two percent. He also represented to her that he was the exclusive distributor in Israel for several window and door manufacturers and that he was building a window and door factory. At one point, Mr. Haber took Ms. Corwin to an industrial park, telling her it was to be the factory site. Ms. Corwin gave Mr. Haber $125,000, and in exchange he promised her a twenty percent ownership interest in Visions International. During 1992 and 1993, Haber told both the Chafis and Ms. Corwin that Visions International had ongoing sales of windows and doors in Israel and that construction on the factory was proceeding well. Ms. Corwin later gave Mr. Haber an additional $44,950 to purchase door manufacturing machines.

Despite these many representations, in truth Mr. Haber simply converted the Chafis' and Ms. Corwin's money for his own personal use. He deposited their funds into his personal bank accounts and used the money to pay living expenses and to repay a personal loan from his father-in-law. He never incorporated Visions International, opened a bank account, nor obtained legal counsel or an accountant for its purported business. Neither Mr. Haber nor Visions International was an exclusive distributor for the claimed window and door manufacturers, and no window manufacturer had invested in Visions International. The Israeli government had not approved any windows or doors from Mr. Haber or Visions International for sale. In fact, other than some minor sample shipments to Israel for testing purposes, neither Mr. Haber nor the sham Visions International ever shipped windows or doors to Israel, sold any product, or entered into any contract in Israel or elsewhere. Mr. Haber never purchased property or began construction of a factory.

Mr. Haber did, however, apply for disability insurance to protect his income from the nonexistent company. In his application to the Equitable Life Assurance Society, he claimed to be a self-employed owner of a business that sold large quantities of windows and doors to local and foreign governments. To meet Equitable Life's minimum income threshold, Mr. Haber stated that he had a current income of $121,000 and that his prior year's income was $120,000. In fact, Mr. Haber had no source of income other than the monies he received from the Visions International investors. The day after his disability insurance policy went into effect, Mr. Haber injured his elbow and filed a disability claim.² He claimed his prior income level entitled him to $5,000 a month in disability benefits. Equitable Life paid Mr. Haber four monthly payments of $5,000 but later challenged his represented income. Mr. Haber provided the insurer with a letter from his bank stating that his 1992 deposits totaled $129,750 and his 1993 deposits totaled $145,750. Despite this evidence, Equitable Life eventually determined Mr. Haber had falsely represented that his income met the policy requirements and it rescinded the policy.

II

A. Equitable Life Mail Fraud Counts

Mr. Haber was found guilty of mail fraud based upon his misrepresentations to Equitable Life in connection with his disability insurance policy. He argues the evidence was insufficient to show his dealings with Equitable Life were part of a common scheme to defraud the Visions International investors, and he contends the district court erred in denying his motion for a judgment of acquittal based on this argument. Mr. Haber had previously moved unsuccessfully to sever these counts from the indictment.

There are three components to a violation of the mail fraud statute: "(1) the devising of a scheme or artifice either (a) to defraud or (b) for obtaining money by means of false or fraudulent pretenses, representations, or promises, (2) the specific intent to defraud, and (3) the use of the United States mails to execute the scheme." United States v. Kennedy, 64 F.3d 1465, 1475 (10th Cir. 1995); 18 U.S.C. 1341. The indictment charged that Mr. Haber's actions with respect to Equitable Life and his false statements to the Chafis and Ms. Corwin were part of one overall scheme to defraud and obtain money by false pretenses. Mr. Haber contends the misrepresentations on his disability insurance application and his actions with respect to Equitable Life were unrelated to his efforts to obtain money from the Visions International investors. He argues proof of a "common scheme" to defraud the investors would require evidence that he planned in advance to suffer an injury and to use the resulting disability benefits to attract or reassure the investors. He claims there is no such evidence and therefore he should have been acquitted on the Equitable Life mail fraud counts.

We review de novo a district court's decision to deny a motion for judgment of acquittal, viewing the evidence in the light most favorable to the government. United States v. Schluneger, 184 F.3d 1154, 1158 (10th Cir. 1999), cert. denied, 120 S. Ct. 800 (2000). In the course of this review we determine "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quotation omitted).

Based upon our review of the record, we conclude the government established that Mr....