United States v. Sedighe Honarvar ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2713
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United States of America, *
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Appellee, *
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v. *
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Sedighe Honarvar, *
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Appellant. *
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Appeals from the United States
No. 06-2720 District Court for the Southern
___________ District of Iowa.
United States of America, *
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Appellee, *
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v. *
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Rahim Zamanian, *
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Appellant. *
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Submitted: January 9, 2007
Filed: February 26, 2007
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Before WOLLMAN, BEAM, MELLOY, Circuit Judges.
BEAM, Circuit Judge.
Rahim Zamanian and Sedighe Honarvar, husband and wife, appeal from guilty
jury verdicts rendered on all counts on July 15, 2005. The couple was convicted of
conspiracy, bank fraud, and making false statements for their scheme of fraudulently
obtaining funds from various financing institutions. We affirm.
I. BACKGROUND
The following recitation of facts is stated in the light most favorable to the
jury's verdict. United States v. Stevens, 439 F.3d 983, 986 (8th Cir. 2006). Honarvar
and Zamanian carried out a fraudulent scheme to obtain funds by completing
applications for credit card accounts with false information regarding the nature of
their income. For example, the couple would state income upwards of $80,000 on the
applications when, in fact, their tax returns listed total income ranging from $1,919
to $25,700. And, they represented to low income housing officials and food stamp
administrators on more than one occasion that they had little or no income. Once they
were issued the credit cards, they transferred funds from the newly-issued credit card
accounts to their pre-existing credit card accounts in order to make payments on those
pre-existing accounts. They would then accumulate additional debt and charges on
the cards. As a result of this scheme, the couple accumulated a large amount of credit
card debt and subsequently discharged approximately $189,000 of credit card debt in
bankruptcy court. The various counts for bank fraud and false statements for each
defendant related to specific applications submitted by each individual for various
cards, including applications for an AT&T Universal MasterCard, a Chase Manhattan
Platinum MasterCard, and a Discover Platinum Card.
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The jury convicted Zamanian and Honarvar on all counts. The district court1
sentenced Zamanian to twelve months and one day of imprisonment on counts one,
five, six, ten and eleven, to be served concurrently; and ordered restitution in the
amount of $45,501.47. Honarvar received a term of imprisonment of one day, with
credit for time served on counts two, three, four, seven, eight, nine, and eleven, along
with a program of home confinement for six months; and was ordered to pay
restitution in the amount of $45,501.47.
On appeal, Honarvar contends that the questions regarding annual household
income on the disputed credit card applications were too ambiguous to form the basis
of prosecution for false statements, and that there was insufficient evidence to support
the convictions on all charges. Zamanian likewise claims there was insufficient
evidence supporting the convictions for bank fraud, false statements and conspiracy,
and further claims that the judgment and sentence on both the bank fraud and false
statement offenses violate the Double Jeopardy Clause.
II. DISCUSSION
A. Sufficiency of the Evidence
Both parties challenge the sufficiency of the evidence on all counts. We review
de novo the sufficiency of the evidence and view that evidence in the light most
favorable to the verdict, giving it the benefit of all reasonable inferences. United
States v. Spears, 454 F.3d 830, 832 (8th Cir. 2006). "We reverse only if no reasonable
jury could find the defendant[s] guilty beyond a reasonable doubt." Id. We do not
weigh the evidence or the credibility of the witnesses. Rather "the jury has sole
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
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responsibility for resolving conflicts or contradictions in testimony, and we must
resolve credibility issues in favor of the verdict." Id.
The crux of Zamanian's argument is that the government failed to prove that he
acted with the subjective state of mind that makes an objectively false statement
criminal, that is, that he knowingly stated his income at a much higher level than it
actually was with the intent to defraud or influence the financial institutions issuing
the credit cards. Honarvar advances a slightly different argument, claiming that the
government failed to prove the falsity of the statements she made regarding her
income on three credit card applications. She also claims, like Zamanian, that the
government failed to prove that the statements, even if false, were knowingly false.
Viewing the evidence as we must, and applying our strict standard of review, we
disagree.
One version of why Zamanian and Honarvar chose their stated income on the
credit card applications, and the reason advanced by Zamanian at trial,2 was that when
they completed the applications they fully expected to make upwards of $82,000 in
the stock market and in an overseas Iranian investment. That, however, is not the
story the jury walked away with after the trial testimony. We cannot weigh the
credibility any differently today. The government presented sufficient evidence that,
in fact, Zamanian and Honarvar conspired and knowingly falsified income on the
credit card applications in an attempt to increase the amount of credit extended so that
they could continue the scheme of accumulating credit as alleged in the indictment.
And, the jury heard evidence that the amount of income stated on a credit card
application, although not determinative, definitely makes a difference in the amount
of credit extended to that particular applicant.
2
Honarvar did not testify.
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Honarvar further argues that even though the government demonstrated that
Honarvar indeed made inconsistent statements regarding income on credit card
applications and actual income reflected on income tax returns, it failed to prove that
one of those statements was true and the others false. Thus, according to Honarvar,
all the government proved was inconsistency, not falsity. Given our standard of
review, we do not follow this line of reasoning. The jury could decide for itself which
evidence it found more persuasive and make a sound determination regarding the
falsity of Honarvar's statements on the credit card applications at issue.
B. Ambiguity of "Income"
Honarvar argues that the question posed on the credit card applications, seeking
"income" or "annual household income" is so excessively vague or fundamentally
ambiguous that it cannot form the basis for any charge based on a false statement in
response to that question. We disagree. Persons of ordinary intelligence would agree
that the term "income" is one with a common usage and understanding, especially
when used on a credit card application. Further, Zamanian and Honarvar objected to
the court's proposed inclusion of a definition of the term "income" in the jury
instructions. It is incongruous for Honarvar to now argue that the ambiguity of the
term led the jury astray when it was within her purview to instruct the jury
accordingly.
C. Double Jeopardy
Even when not preserved below, as Zamanian concedes, we have reviewed
double jeopardy arguments for plain error. United States v. Gamboa, 439 F.3d 796,
809 (8th Cir.), 127 S. Ct. 605 (2006). Under this standard, the court will correct the
error "'if the error results in a miscarriage of justice or seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.'" United States v. Ihmoud,
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454 F.3d 887, 895 (8th Cir.), cert. denied, 127 S. Ct. 701 (2006) (quoting United
States v. Jackson, 155 F.3d 942, 947 (8th Cir. 1998)).
The Double Jeopardy Clause is violated in a single proceeding only
where multiple punishments are imposed for the same crime contrary to
the legislature's intent. In order to determine whether two crimes are the
same for double jeopardy purposes, we apply the test of Blockburger v.
United States, 284 U.S. 299, 304 (1932). Under Blockburger, if each
offense requires proof of an element not required by the other, the crimes
are not considered the same, and a double jeopardy challenge necessarily
fails. We have recognized that the Blockburger test focuses on the
statutory elements of the offenses, rather than the evidence presented at
trial. In addition, a proper analysis of a double jeopardy claim requires
us to examine not only the statutory provisions at issue, but also the
specific charges brought against the defendant in the indictment.
Gamboa, 439 F.3d at 809 (citations and quotations omitted).
Zamanian acknowledges that on their statutory faces the crimes of bank fraud
under 18 U.S.C. § 1344 and false statements under 18 U.S.C. § 1014 do not present
a double jeopardy problem, as each contains elements not included in the other.
United States v. Chacko, 169 F.3d 140, 148 (2d Cir. 1999) (noting that section 1344
bank fraud requires the distinguishing element of a scheme or artifice, while section
1014 false statement offense requires the distinguishing element of a false statement);
United States v. Dupre, 117 F.3d 810, 818 (5th Cir. 1997) (same). Notwithstanding
this concession, Zamanian encourages this court to examine the jury instructions in
this case, claiming that the instructions on the bank fraud offenses specifically charged
to the jury incorporated or subsumed the false statement offenses.
Looking at the statutory elements of the offenses in addition to the specific
charges brought against Zamanian in the indictment, as we must under Blockburger,
we have no double jeopardy concerns. While novel, Zamanian's argument that the
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jury instructions violate the Double Jeopardy Clause is unavailing. The jury
instructions adequately set forth the statutory elements of the offenses, along with
additional descriptions of the particular acts at issue on each count. The fact that both
charges were based on statements made by Zamanian on the credit card applications,
however, does not mean that the instructions on bank fraud and false statements
subsume each other in violation of Blockburger.
III. CONCLUSION
For the reasons set forth herein, we affirm.
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