United States v. Khorozian ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-23-2003
USA v. Khorozian
Precedential or Non-Precedential: Precedential
Docket No. 02-2820
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PRECEDENTIAL
Filed June 20, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2820
UNITED STATES OF AMERICA
v.
ANGELA KHOROZIAN,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 00-cr-00393-1)
District Judge: Honorable William H. Walls
Argued April 24, 2003
Before: SCIRICA,* Chief Judge, AMBRO and
GARTH, Circuit Judges
(Opinion filed June 20, 2003)
Herald Price Fahringer, Esquire
(Argued)
Erica T. Dubno, Esquire
Lipsitz, Green, Fahringer, Roll,
Salisbury & Cambria, LLP
780 Third Avenue, 32nd Floor
New York, NY 10017
* Judge Scirica began his term as Chief Judge on May 4, 2003.
2
Ivan Stephan Fisher, Esquire
251 East 61st Street
New York, NY 10021
Attorneys for Appellant
Christopher J. Christie
United States Attorney
George S. Leone
Chief, Appeals Division
Gail Zweig (Argued)
Assistant U.S. Attorney
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102-2535
Attorneys for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge:
We address the scope of the federal bank fraud statute,
18 U.S.C. § 1344. Angela Khorozian appeals her conviction
on the ground that she could not have conspired to
commit, and could not have committed, bank fraud by
negotiating counterfeit checks because she did not know
that those checks were counterfeit. She also alleges various
errors in the District Court’s evidentiary rulings, jury
instructions, and application of the Sentencing Guidelines.
We affirm both the conviction and sentence.
I. Background
In 2000, Khorozian was approached with a moneymaking
opportunity by her longtime acquaintance Eduardo
Queirolo, a businessman from Brazil. Queirolo told
Khorozian that a third person, Mr. Camilo, had presented
Queirolo with a scheme in which he could obtain part of a
sizable commission — $6 million — if he negotiated
$20,398,872 in checks through a bank in the United
States. Camilo said the checks needed to be negotiated in
the United States to avoid high taxes that would result were
3
they negotiated in Brazil. Queirolo requested Khrozian’s
assistance in this project. It was agreed that Khorozian
would receive $3 million of the commission, Queirolo and
Camilio would each receive $1 million, and other unnamed
individuals would split the remaining $1 million.
To facilitate negotiation of the checks, Khorozian
attempted to open a commercial bank account at Hudson
United Bank (“Hudson United”).1 To find out how to open
such an account, she spoke with John Demetrius, a
personal friend who sits on Hudson United’s board of
directors. Demetrius, in turn, referred Khorozian to David
Yanagisawa, a Senior Vice President at Hudson United.
Yanagisawa established an account for Khorozian at a
meeting in which she made three misrepresentations. First,
Khorozian told Yanagisawa that she expected to make the
initial deposit via wire transfer. Her statement is significant
because a wire transfer is an instantaneous transfer of
funds and thus would pose no financial risk to Hudson
United. Yanagisawa testified that, had he known the initial
deposit would be $20 million in checks, he would not have
opened the account because of the increased risk. Second,
Khorozian represented that she would be using the
deposited funds for investment in a sugar plantation in
Africa when in fact she had no such plans. Third, she
opened the account in the name of “Sugarbank,” a New
Jersey corporation whose authorization to do business had
lapsed due to its failure to pay taxes.
On May 25, 2000, Queirolo received two checks. One was
allegedly drawn on the account of Costco Wholesale Corp.
and the other on Liberty Carton Co.’s account. The checks
were both payable to an individual named Luiz Carlos
Teixiera. At trial, Queirolo testified that he verified that the
checks were not the result of drug or arms trafficking, that
Costco and Liberty Carton had sufficient funds to pay the
checks, and that the check numbers were “correct.” He was
unable to verify whether the signatures on the checks were
genuine. Thus, because his investigative resources in Brazil
1. Khorozian and the Government agree that it would have been
impossible to negotiate $20 million in checks through a personal
account.
4
were limited, he asked Khorozian to perform a more
thorough investigation in the United States. She agreed and
later told him that she investigated the checks and that
they were good. On May 30, 2000, Queirolo arrived in the
United States with the checks. Khorozian endorsed both
checks as payable to Sugarbank.
The next day, Khorozian and Queirolo went to Hudson
United to deposit the checks. They were assisted by the
Custom Branch Manager, Anthony Moscati. At this
meeting, Khorozian introduced Queirolo as “Mr. Teixeira,”
the individual to whom the checks were payable — a fourth
misrepresentation. Moscati showed the checks to Tom
Shara, the Executive Vice President in charge of
commercial loans, who accepted the checks, but subjected
them to a thirty-day hold for verification, given the large
sum at stake.
Upon returning home, Khorozian received a fax —
sloppily handwritten — instructing her and Queirolo how to
distribute the $20 million. Khorozian and Queirolo had
expected that they would be asked to forward the funds to
a single bank account, but the fax instead instructed them
to wire money to “about five” accounts, some held by
individuals with Arabic names. The fax’s unexpected
instructions and unprofessional appearance made
Khorozian and Queirolo suspicious, according to Queirolo,
but they nonetheless proceeded with their plan. In fact,
Queirolo testified that, as a result of the suspicious
instructions and because of concerns that Hudson United
might become suspicious when asked to effect the
transfers, Khorozian drew up a two-page fake “investment
contract” between Sugarbank and Teixiera. The agreement
purported to contain the terms of a hotel development
project in Africa valued at the exact amount of the two
checks. The contract specified that Sugarbank would
receive a 15% commission for its work — less than the
agreed-upon $6 million commission, according to Queirolo,
to make it appear more credible.
Queirolo testified that he and Khorozian planned to
furnish the agreement to Hudson United in the event that
anyone at the bank inquired into their intentions with
respect to the $20 million deposit. Khorozian contends,
5
however, that the investment contract was genuine — that
there actually was a deal between Sugarbank and Teixiera.
To prove the legitimacy of the agreement and to refute
Queirolo’s claim that the investment agreement was drafted
in response to the suspicious instructions, Khorozian
sought to demonstrate at trial that she faxed a copy of the
contract to Etembe Kono of the Foundation Elena, a
charitable foundation in Cameroon, on May 15 — before
Queirolo received the two checks drawn to Teixiera. She
also sought to introduce into evidence a faxed copy of the
investment contract to show that the fax header2 was dated
May 15. (The District Court refused to admit this fax,
however, ruling that it was hearsay.) Khorozian did not
present the investment contract to Hudson United,
however.
Meanwhile, Hudson United attempted to verify the
validity of the two checks by calling Costco and Liberty
Carton. Each confirmed that it did not issue its respective
check. Upon discovering that they were counterfeit, the
bank called the FBI, which arrested Khorozian and
Queirolo. Queirolo pled guilty to conspiracy to commit bank
fraud and appeared as a Government witness at
Khorozian’s trial, at which the jury found Khorozian guilty
of both bank fraud and conspiracy to commit bank fraud.
At sentencing, the Court believed that the intended
Guideline range overstated the severity of Khorozian’s
offense. It therefore departed downward from the 51 to 63
month sentence recommended by the United States
Sentencing Guidelines (“U.S.S.G.”) and imposed a sentence
of 18 months in prison on each count to run concurrently.
Khorozian appeals on four grounds: (1) the District Court
should have granted her motion for acquittal because she
did not know the checks were counterfeit and therefore
lacked intent to defraud the bank; (2) the Court’s jury
instructions were deficient; (3) the Court deprived her of
due process by refusing to admit a fax copy of the
investment contract on hearsay grounds and by refusing to
2. A header is a line on the top of the faxed page generated by the fax
machine and containing, among other information, the date on which
the fax was sent.
6
grant a continuance so that a defense witness could travel
to testify; and (4) it erred in basing Khorozian’s sentence on
$20 million of intended loss under the Sentencing
Guidelines because she did not know the checks were
counterfeit and therefore had no intent to cause the bank
any loss.3
II. Discussion
A. Motion for Acquittal
The federal bank fraud statute, 18 U.S.C. § 1344, makes
it a crime “knowingly [to] execute[ ], or attempt[ ] to execute,
a scheme or artifice — (1) to defraud a financial institution;
or (2) to obtain any of the moneys, funds, credits, assets,
securities, or other property owned by, or under the
custody or control of, a financial institution, by means of
false or fraudulent pretenses, representations, or promises.”
We recently interpreted § 1344 in United States v. Thomas,
315 F.3d 190 (3d Cir. 2002), holding that both parts of
§ 1344 must be read conjunctively: “there can be no such
thing as an independent violation under subsection (2).” Id.
at 197. Rather, “the sine qua non of a bank fraud violation
. . . is the intent to defraud the bank.” Id. at 197; see also
United States v. Blackmon, 839 F.2d 900, 905-06 (2d Cir.
1988) (holding that a conviction under the bank fraud
statute requires intent to “victimize a bank”). Were we to
read § 1344 disjunctively, “almost any scheme in which a
victim withdraws money from a bank and turns it over to
the perpetrator would become fair game under the statute.
Such a reading . . . is irreconcilable with Congressional
intent.” Thomas, 315 F.3d at 196.
Khorozian contends that there is insufficient evidence
that she knew the checks were counterfeit and therefore
she lacked the requisite intent to defraud Hudson United.
The Government counters that there is sufficient record
evidence for a jury to find that Khorozian knew the checks
were counterfeit — or at least sufficient evidence to support
the contention that Khorozian was willfully blind to the fact
3. The District Court had jurisdiction under 18 U.S.C. § 3231. We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.
7
that the checks were counterfeit. In the alternative, the
Government argues that a conviction under the bank fraud
statute does not require that Khorozian knew the checks
were invalid, only that she made material representations
to the bank that put it at risk of loss. As Khorozian’s
argument concerns the scope of the bank fraud statute, a
question of law, our review on this issue is plenary. Id. at
195.
We begin by noting that “a claim of insufficiency of the
evidence places a very heavy burden on an appellant,”
United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)
(quoting United States v. Gonzalez, 918 F.2d 1129, 1132
(3d Cir. 1990)), and that we must interpret all facts in the
light most favorable to the Government, United States v.
Hart, 273 F.3d 363, 371 (3d Cir. 2001). The jury could have
found that Khorozian was willfully blind to the fact that the
checks were counterfeit. Queirolo instructed Khorozian to
verify that the checks were genuine, but she apparently
failed to do so. Had she followed Queirolo’s instruction —
by telephoning the drawers, for example — she would have
discovered that the checks were not drawn by Costco and
Liberty Carton. We point out Queirolo’s instruction not
because Khorozian had any legal duty to follow it, but
rather because it shows his concerns — expressed to
Khorozian — about the scheme’s legality. Aware of
Queirolo’s concerns, and in light of the fact that she was
attempting to negotiate over $20 million in third-party
checks payable to an individual she had, according to
Queirolo, never met (Teixiera), a jury could have concluded
that Khorozian turned a blind eye to the checks’ potential
invalidity.
Moreover, Khorozian surely became suspicious after
receiving the faxed instructions in sloppy handwriting.4 As
discussed, Queirolo testified that the unprofessional-
looking fax and the unexpected instructions to disburse
funds to multiple accounts with Arabic names (rather than
a single account) made him question the transaction’s
4. While, by this time, Khorozian had already attempted to deposit the
checks, she could have called Hudson United to alert the bank that the
checks might not be genuine.
8
legitimacy. Indeed, that fax made Khorozian so concerned
about the transaction that she drafted a fake investment
contract to deal with this concern. In this context, the jury
could have inferred that Khorozian remained willfully blind
to the checks’ validity in order to receive her $3 million
share of the commission. As we discuss below in
connection with the jury instructions, willful blindness
constitutes sufficient fraudulent intent under § 1344.
Even if Khorozian were not deliberately indifferent to
whether the checks were counterfeit, the bank fraud
statute nonetheless proscribes her actions. As discussed,
Khorozian made four misrepresentations to Hudson United:
she would make the initial deposit by wire transfer; the $20
million deposit would be invested in a sugar plantation in
Africa; the company for which Khorozian opened the
account, Sugarbank, was a corporation in good standing
(when in fact it was not); and Khorozian introduced
Queirolo as Teixiera. Mr. Yanigasawa testified that, merely
for the first misrepresentation, he would not have opened
the account. Thus, there is undisputed record evidence that
the first misrepresentation is material: but for this false
statement, the bank would not have negotiated the two
checks. That misrepresentation was therefore the “first
step” in Khorozian’s fraudulent scheme that placed the
bank at a risk of a loss.5
The Government’s position finds support in United States
v. Moran, 312 F.3d 480 (1st Cir. 2002), in which the First
Circuit reversed a district court’s judgment of acquittal
under analogous circumstances. In Moran, the two
defendants — an attorney representing a bank in
connection with a loan and his wife, a director at the bank
— failed to disclose their financial interest in the loan.
Importantly, Moran held the defendants guilty even though
they did not specifically intend to cause the bank a loss
(i.e., they intended that the loans would be repaid), but
5. Had Hudson United actually negotiated the checks, it would have been
subjected to a $20 million loss. See Univ. Premium Acceptance Corp. v.
York Bank & Trust Co., 69 F.3d 695, 701 (3d Cir. 1995) (“The general
rule is a bank that pays on a forged indorsement is liable to the
drawer.”); see also U.C.C. § 3-404(d).
9
rather intended only to make misrepresentations that made
a loss more likely. Specifically, because of the lawyer-
defendant’s relationship to the bank, he “was positioned
uniquely to expedite the process by which [the investors]
could obtain financing[,] . . . for instance by bypassing
conventional bureaucratic impediments.” Id. at 491. Moran
thus illustrates that § 1344’s specific intent requirement is
satisfied if an individual commits an act that could put the
bank at risk of loss.6
The cases Khorozian cites are factually distinguishable
because those cases involved fraud on a third party where
the bank was merely an “unwitting instrumentality” in the
fraud rather than the “target of deception.” Thomas, 315
F.3d 201 (citation omitted). Compare id. at 194, 201-02(bank not at risk of loss when an individual taking care of
an elderly woman fraudulently induced the patient to write
checks to her; because the checks were genuine, although
obtained from the drawer by fraud, the bank faced no
liability); United States v. Rodriguez, 140 F.3d 163 (2d Cir.
1998) (bank not at risk of loss when a friend of the
defendant improperly made the defendant a “vendor” in her
employer’s database and then wrote checks to her from the
company’s account); United States v. Davis, 989 F.2d 244(7th Cir. 1993) (scheme in which defendant submitted
fraudulent tax returns to the IRS in the name of a homeless
person, established a business and a commercial account
with himself and the homeless person as signatories, and
then deposited the tax refunds into the account, is not
bank fraud because the bank was at no risk of loss); United
6. That Hudson United never actually suffered harm is also immaterial to
Khorozian’s defense. Section 1344 only requires that the bank be placed
at risk of loss. See United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir.
1987) (“[I]t was not necessary for the Government to prove that the
intended victim of the fraud was actually defrauded.”); accord Moran,
312 F.3d at 489. Moreover, in deciding whether an individual has
committed bank fraud, we do not consider whether the bank exercised
due care in attempting to prevent the loss (as here, by placing a thirty-
day hold on the checks in question) or relied on the misrepresentations.
Neder v. United States, 527 U.S. 1, 24-25 (1999) (“The common-law
requirements of ‘justifiable reliance’ and ‘damages’ . . . plainly have no
place in the federal fraud statutes.”).
10
States v. Orr, 932 F.2d 330, 332 (4th Cir. 1991) (opening a
bank account in a false name and subsequently drawing
the account down to a negative balance is not bank fraud
because “[w]hether the account was in [a false name] was
not of significance to the giving of checks payable to certain
payees and the return of such checks for reasons of
insufficient funds.”).
We therefore hold that 18 U.S.C. § 1344 proscribes
Khorozian’s actions.7
B. Due Process Claims
1. Evidentiary Issue
Khorozian sought to move into evidence a fax of the
(allegedly fake) investment contract sent to Kono. Khorozian
alleges that she was not attempting to introduce the fax for
its validity, but rather for the fact that (1) the fax header —
generated by the fax machine — bore the date May 15 and
(2) that the fax contained the name Teixiera. Khorozian
wanted to establish, through this fax, that the investment
contract was drafted on or before May 15 to refute
Queirolo’s testimony that it was concocted as part of a plan
to deceive the bank. She also wanted to show that she and
Teixiera had a commercial relationship before May 25, the
date that Queirolo received the checks with Teixiera’s name
on them, to support her contention that she believed the
funds were to be used for the investment project described
in the fax (and thus that she had no intent to cause the
bank loss). Reasoning that the fax was hearsay evidence,
the Court refused to admit it. Khorozian argues that this
ruling denied her due process. We review for abuse of
discretion. United States v. Tyler, 281 F.3d 84, 98 (3d Cir.
2002).
Under the Federal Rules of Evidence, any written
document offered to prove the truth of the matter asserted,
other than one made by the declarant while testifying, is
7. We do not consider other arguments Khorozian raised by way of a
letter styled under Fed. R. App. Proc. 28(j). Such letters, under the Rule’s
express terms, may include only citations to supplemental authorities
and the reasons for submitting them. Thus, supplemental arguments
such as Khorozian has made are out-of-bounds.
11
hearsay. Fed. R. Evid. 801(c). Hearsay is inadmissible
unless it falls under an exception to the evidence rule that
proscribes it. Fed. R. Evid. 802. The fax at issue was
hearsay. First, Khorozian’s ultimate purpose for offering the
fax into evidence was to establish that she intended to use
the $20 million for a legitimate investment. Moreover, the
fax was offered to prove that it was transmitted on May 15
from Khorozian’s fax machine. Because fax headers are
easily fabricated by the sender, we view the fax header as
akin to a statement by Khorozian that the fax was sent on
May 15. See Total Containment, Inc. v. Environ Products,
Inc., 921 F. Supp. 1355, 1370 n.3 (E.D. Pa. 1995), affirmed
in part and vacated in part on other grounds, 1997 WL
16032 (Fed. Cir. 1997) (“Apparently, a fax burn-in can be
rather easily faked. The time and date printed by the
machine can be changed merely by resetting the machine.
Alternatively, the burn-in from one document can be
photocopied onto another document with an office copier.”).
The fax does not fall into any explicit exception to the
hearsay rule. And while Rule 807 provides that a
“statement not specifically covered by [any of Rule 803 or
804’s explicit exceptions], but having equivalent
circumstantial guarantees of trustworthiness,” may under
certain circumstances be admitted, we do not believe that
the fax header is sufficiently trustworthy to warrant the
fax’s admission. As noted above, fax headers are easily
faked. In this context, the District Court had reason to
believe that Khorozian fabricated the fax header. First, the
Government presented evidence suggesting that Khorozian
induced a notary to notarize falsely the investment
contract. One who would do this is also likely to falsify a
fax header. Second, while Kono was apparently ready to
corroborate she received the fax on approximately May 15,8
Queirolo testified that Khorozian intended to bribe an
African official to authenticate the fax;9 Kono may have
been that person. While Khorozian could have introduced
telephone records to corroborate the date of the fax to
8. The Court disallowed her testimony with respect to the fax, however.
9. Queirolo testified that Khorozian was to receive $3 million in the
scheme — as compared to his $1 million — because she needed the
funds to bribe an African official.
12
Kono, she did not. Compare Total Containment, 921 F.
Supp. at 1370 (refusing to admit a fax to prove that its
contents were received on a certain date because “[n]either
the sender nor the recipient of the fax [was] identified . . .
[and] [n]o phone records . . . that correlate with the alleged
time and date of the fax [were] introduced.”).
2. Failure to Grant a Continuance
Khorozian sought to call Maitra Goudja Abdallah
Nassara, a former judge in the Republic of Chad, to testify
on her behalf. However, Nassara’s wife suddenly died while
he was en route. He thus returned to Chad and was unable
to testify on the scheduled date. Khorozian argues that the
District Court abused its discretion by denying the defense
a continuance until Nassara could appear. We review this
denial for abuse of discretion. United States v. Kikumura,
947 F.2d 72, 78 (3d Cir. 1991). Although a “myopic
insistence upon expeditiousness in the face of a justifiable
request for delay can render the right to defend with
counsel an empty formality,” denying a request for a
continuance constitutes an abuse of discretion only when it
is “so arbitrary as to violate due process.” Ungar v. Sarafite,
376 U.S. 575, 589 (1964).
We perceive no due process violation. At trial, defense
counsel essentially conceded that Nassara would not be an
essential witness. Counsel represented that Nassara’s
“testimony would be extremely limited” and that he would
be asked to refer to the investment contract that the Court
already refused to admit into evidence. Indeed, counsel said
“I choose to rest at this time rather than ask for a delay to
permit this witness to come merely to have the crux of his
testimony excluded.” In this context, counsel appears to
have conceded that a failure to procure Nassara’s testimony
would not rise to the level of a due process violation.10
C. Jury Instructions
Khorozian further argues that the District Court erred in
instructing the jury. We exercise plenary review in
determining “whether the jury instructions stated the
10. Khorozian has not argued that the District Court’s failure to grant a
continuance was plain error, and we do not perceive plain error.
13
proper legal standard.” United States v. Coyle, 63 F.3d
1239, 1245 (3d Cir. 1995). We review the refusal to give a
particular instruction or the wording of instructions for
abuse of discretion. Id. Moreover, “when we consider jury
instructions we consider the totality of the instructions and
not a particular sentence or paragraph in isolation.” Id.
1. Good Faith
Because good faith is a complete defense to fraud charges
— negating specific intent — Khorozian requested a jury
instruction that “honest mistake of judgment does not rise
to the level of an intent to defraud.” The District Court
declined to give this instruction, instead charging that
“regardless of how misleading or deceptive a plan may be[,]
it is not fraudulent if it was carried out in good faith.” We
discern no meaningful difference between the proposed
instruction and the instruction issued. Had Khorozian
made an “honest mistake of judgment,” it necessarily was
in “good faith.” The instruction’s wording that, “regardless
of how misleading or deceptive a plan may be” as to the
bank, it is not fraudulent if “carried out in good faith”
adequately informed the jury that Khorozian’s intent was
critical to her conviction for bank fraud.
2. Intent to Defraud
Khorozian also contends that the Court misinstructed the
jury by charging that “the government may meet its burden
to prove intent through evidence that the defendant made
a material misstatement of fact with reckless disregard for
the truth.” She complains that “[t]his instruction
emasculated the specific intent to defraud mandated by
§ 1344.” We see no error. Although this particular
statement, taken out of context, may not employ the exact
language as used in Thomas, the jury instructions, taken
as a whole, did communicate to the jury that it must find
that Khorozian possessed the specific intent to defraud and
put Hudson United at a risk of loss.
A “willful blindness” instruction “allows the jury to
impute the element of knowledge to the defendant if the
evidence indicates that he purposely closed his eyes to
avoid knowing what was taking place around him.” United
States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991). “We
14
have upheld a district court’s willful blindness instruction
where the charge made clear that the defendant himself
was subjectively aware of the high probability of the fact in
question, and not merely that a reasonable man would
have been aware of the probability.” United States v.
Stewart, 185 F.3d 112, 126 (3d Cir. 1999) (internal
quotation marks omitted). A willful blindness instruction
also is proper when “[t]he jury could have found that [the
defendant] deliberately closed his eyes to what otherwise
would have been obvious to him.” Id.; accord United States
v. Singh, 222 F.3d 6, 11 (1st Cir. 2000) (“A willful blindness
instruction is justified when the defendant claims to lack
guilty knowledge, yet the evidence, taken in the light most
favorable to the government, suffices to support an
inference that he deliberately shut his eyes to the true
facts.”). As we previously concluded, the evidence supported
such an inference in this case. Therefore, the District Court
properly issued the willful blindness instruction.
3. Scheme or Artifice to Defraud
Khorozian objects as well to the District Court’s
instruction with respect to the meaning of “scheme or
artifice to defraud.” The Court instructed that a scheme or
artifice to defraud may be found “where there has been a
departure from basic honesty, fair play and candid
dealings” — an instruction Khorozian argues is too vague
as applied in her case. We approved such a definition in
United States v. Goldblatt, 813 F.2d 619 (3d Cir. 1987);
accord Moran, 312 F.3d at 489. Moreover, the jury charge
viewed as a whole clearly instructed the jurors that they
needed to find specific intent to defraud in order to convict.
Thus we disagree yet again with Khorozian.
D. Sentencing Guidelines
Khorozian also contests the District Court’s application of
U.S.S.G. § 2F1.1, regarding amount of loss, to calculate her
sentence.11 Because the bank suffered no actual loss, the
Court necessarily sentenced Khorozian based on the loss
11. U.S.S.G. § 2F1.1 has since been deleted and consolidated with
§ 2B1.1. The former § 2F1.1 can be found at Appendix C, Amendment
617 of the U.S.S.G.
15
she intended. See U.S.S.G. § 2F1.1 cmt. n.8 (“[I]f an
intended loss that the defendant was attempting to inflict
can be determined, this figure will be used if it is greater
than the actual loss.”). She argues that, because she did
not know the checks were counterfeit, she intended no loss
and thus the District Court erred in finding that $20
million was the amount of loss. See United States v.
Geevers, 226 F.3d 186, 192 (3d Cir. 2000) (“It is clear that
a district court errs when it simply equates potential loss
with intended loss without deeper analysis.”). We review the
District Court’s application of § 2F1.1 for clear error. United
States v. Evans, 155 F.3d 245, 252 (3d Cir. 1988).
In this context, the District Court did not err. Because we
hold that the bank fraud statute reaches Khorozian’s
conduct — and the jury found her guilty under the statute
— Khorozian intended to cause the bank loss. The
Government set out a prima facie case of intended loss by
showing that the two checks Khorozian attempted to
negotiate had a face value of approximately $20 million.
Khorozian did not offer any evidence to disprove this
amount of loss. Thus, the Government met its burden to
prove the amount of loss. See Geevers, 226 F.3d at 194(“[T]he government’s presentation of the face value as
evidence may make a prima facie case that the defendant
intended to cause the full loss of those amounts . . . . Once
the government presented this information to the District
Court . . . the Court was free to accept the loss figure in the
absence of persuasive evidence from [the defendant] that
his intent was to steal a lesser amount.”).
* * * * * * * * * *
We hold that a jury could have found Khorozian willfully
blind to the counterfeit checks and that 18 U.S.C. § 1344proscribes Khorozian’s misrepresentations to Hudson
United. The District Court did not deprive Khorozian of due
process by refusing to admit a faxed copy of the investment
contract or by refusing to grant a continuance for a witness
to testify. Moreover, the Court’s jury charge was proper and
it correctly applied U.S.S.G. § 2F1.1 in sentencing
Khorozian. We therefore affirm.
16
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit