United States v. Jawad \"Joe\" Quassani , 593 F. App'x 627 ( 2015 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                  FEB 04 2015
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                     No. 14-10035
    Plaintiff - Appellee,           D.C. No. 2:11-cr-00409-LRH-CWH-1
    v.
    MEMORANDUM*
    JAWAD “JOE” QUASSANI,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Nevada
    Larry R. Hicks, District Judge, Presiding
    Argued and Submitted January 13, 2015
    San Francisco, California
    Before: CLIFTON and NGUYEN, Circuit Judges, and RAKOFF, Senior District
    Judge.**
    Jawad Quassani appeals from his jury-trial conviction and 37-month
    sentence for mail fraud, wire fraud, and conspiracy to commit mail and wire fraud.
    We affirm.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
    District Court for the Southern District of New York, sitting by designation.
    Quassani asserts that the Government engaged in improper vouching.
    Because Quassani did not object at trial to the statements now challenged on
    appeal, our review is for plain error. United States v. Dorsey, 
    677 F.3d 944
    , 953
    (9th Cir. 2012). The claim fails because there was no error of any kind. The
    instances of alleged vouching cited by Quassani were either not vouching, not
    impermissible in light of attacks on the credibility of government witnesses based
    on the existence of plea bargains, or too inconsequential to have been prejudicial.
    Quassani suggests that the Government should have been required to prove
    materiality as an element of conspiracy under 
    18 U.S.C. § 1349
    . Based on this
    contention, he asserts that there was insufficient evidence of materiality before the
    jury and that the district court erred when it failed to instruct the jury that
    materiality was an element of conspiracy under Section 1349. Both of these claims
    fail because materiality is not a separate element of conspiracy under 
    18 U.S.C. § 1349.1
     In addition, the materiality instructions that were given regarding the mail
    and wire fraud counts were not erroneous.
    1
    United States v. Saybolt, 
    577 F.3d 195
     (3d Cir. 2009), on which Quassani
    relies, is inapposite. In Saybolt, the Third Circuit concluded that materiality was an
    implied element of conspiracy under 
    18 U.S.C. § 286
     because that statute
    specifically prohibited participation in a “conspiracy to defraud.” 
    577 F.3d at
    199–204 (emphasis added); see also 
    18 U.S.C. § 286
    . 
    18 U.S.C. § 1349
    , the statute
    under which Quassani was charged and convicted, includes no such language.
    2
    Quassani asserts that reversal is required because the district court erred
    when it refused to replace one juror with an alternate. The record before the court
    did not support a claim of actual bias on the part of the juror. The juror explicitly
    averred that he could be impartial and the district court did not abuse its discretion
    in accepting that statement. There was no implied bias because the relationship at
    issue here did not represent one of those “extraordinary cases,” United States v.
    Gonzalez, 
    214 F.3d 1109
    , 1112 (9th Cir. 2000) (quotation omitted), in which “an
    average person in the position of the juror in controversy would be prejudiced.” 
    Id.
    (quotation omitted) (emphasis omitted). Nor was there ground for a claim under
    McDonough Power Equipment, Inc. v. Greenwood, 
    464 U.S. 548
     (1984), based on
    the failure of a juror “to answer honestly a material question on voir dire.” 
    Id. at 556
    . Although the juror and the Assistant United States Attorney characterized
    their relationship differently, the difference was not remarkable and was not
    necessarily indicative of juror dishonesty. “Whether a juror is dishonest is a
    question of fact” reviewable for clear error, Fields v. Brown, 
    503 F.3d 755
    , 767
    (9th Cir. 2007) (en banc), and the district court’s determination on this issue was
    not clearly erroneous.
    The district court did not impermissibly presume that the Sentencing
    Guidelines range was reasonable or give inappropriate weight to the Guidelines.
    3
    Rather, the district court correctly used the Guidelines as “the starting point and the
    initial benchmark,” Gall v. United States, 
    552 U.S. 38
    , 49 (2007), and then gave
    appropriate consideration to the other § 3553(a) factors as well.
    The district court did not err when it determined that Quassani was not
    entitled to a two-level downward adjustment in the offense level as “a minor
    participant in any criminal activity.” U.S. SENTENCING GUIDELINES MANUAL §
    3B1.2(b) (2014). The record indicates that Quassani played an important role in the
    scheme. This evidence is sufficient to support the district court’s finding that no
    “minor participant” adjustment was merited.
    Quassani also challenges the district court’s amount-of-loss determination.
    In this context, “[a] district court’s method of calculation is reviewed de novo
    while the determination of the amount is reviewed for clear error.” United States v.
    Ali, 
    620 F.3d 1062
    , 1073 (9th Cir. 2010). Quassani suggests that the district court,
    in calculating the loss, should have relied on two “credit bids” entered by the
    lenders on the two properties involved. It was not error to decline to take those bids
    into account, however. See generally United States v. Yeung, 
    672 F.3d 594
    , 604
    (9th Cir. 2012), abrogated in part on other grounds by Robers v. United States,
    
    134 S.Ct. 1854
     (2014) (explaining that “[a] lender’s credit bid may not reflect the
    value of the collateral in all circumstances,” such as in a circumstance where the
    4
    “credit bid [is] based on [a] fraudulently inflated loan amount” (quotation
    omitted)).
    Quassani challenges the ordered forfeiture. Federal criminal forfeiture law
    “mandates that a defendant forfeit a very specific amount—the proceeds of his
    criminal activity.” United States v. Casey, 
    444 F.3d 1071
    , 1076 (9th Cir. 2006).
    “For purposes of criminal forfeiture, the ‘proceeds’ of a fraudulently obtained loan
    equal the amount of the loan.” United States v. Newman, 
    659 F.3d 1235
    , 1244 (9th
    Cir. 2011). The district court has no discretion to lower this amount, 
    id. at 1240
    ,
    and the Government was not under an obligation to trace the proceeds of the crime.
    Quassani’s suggestion that 
    18 U.S.C. § 981
    (a)(2)(C) entitles him to a reduction in
    the forfeiture amount is also unavailing, because that provision is not applicable to
    him.
    We decline to consider Quassani’s ineffective assistance of counsel on direct
    appeal. “As a general rule, we do not review challenges to the effectiveness of
    defense counsel on direct appeal.” United States v. Moreland, 
    622 F.3d 1147
    , 1157
    (9th Cir. 2010). Although we may review an ineffective assistance claim “when the
    record on appeal is sufficiently developed to permit review and determination of
    the issue, or . . . when the legal representation is so inadequate that it obviously
    denies a defendant his Sixth Amendment right to counsel,” United States v. Ross,
    5
    
    206 F.3d 896
    , 900 (9th Cir. 2000) (quotation marks omitted), neither of these two
    narrow exceptions applies here. The current record is silent, for example, as to the
    reasons that trial counsel may have had for taking the actions he did.
    Finally, because we conclude there was no error committed by the district
    court, Quassani’s claim of cumulative error also necessarily fails. United States v.
    Jeremiah, 
    493 F.3d 1042
    , 1047 (9th Cir. 2007).
    AFFIRMED.
    6