United States v. Hitomi ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4076
YUJI HITOMI,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Charles E. Simons, Jr., Senior District Judge.
(CR-93-356)
Submitted: June 30, 1998
Decided: August 11, 1998
Before NIEMEYER and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James W. Erbeck, ERBECK & ASSOCIATES, LTD., Las Vegas,
Nevada, for Appellant. J. Rene Josey, United States Attorney, Dean
A. Eichelberger, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Yuji Hitomi appeals his conviction and sentence for wire
fraud in violation of 18 U.S.C. § 1343 (1994), and conspiracy in vio-
lation of 18 U.S.C. § 371 (1994). Finding no error, we affirm Appel-
lant's conviction and sentence.
I.
The Government's evidence at trial showed that Hitomi and co-
defendant Douglas T. Wright ("Defendants"), along with co-
conspirator Motokichi Muto, attempted to obtain millions of dollars
in financing using a fraudulent Japanese reconstruction bond
("Certificate"). Defendants represented that the Certificate had been
issued by the ministry of finance of Japan as part of its reconstruction
efforts after World War II. The Certificate, if real, would have had a
value of approximately $500 million when it matured in 1998.
The FBI began investigating Defendants in July 1993. Wright and
an FBI informant conducted a series of transactions between July and
September 1993, which eventually culminated in Wright, Hitomi, and
Muto flying to South Carolina to consummate the sale of the Certifi-
cate. Undercover FBI agents posing as investors met with Hitomi,
Wright, and Muto in a hotel room. The agents brought with them con-
tract documentation, including a purchase and sale agreement. Both
Defendants signed the agreement. No attorneys were present at the
meeting, nor did the Defendants at any time request that they be
allowed to have attorneys look over the documents.
During the negotiating session, the agents told Defendants that they
had checked with a bank that morning and been advised that the Cer-
tificate was fraudulent, and that no bank should accept it as collateral.
One of the agents then said that he would try to obtain financing from
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a small bank that might not be aware of the problem with the certifi-
cate, and Defendants acquiesced. Hitomi agreed to accept $25 million
for the Certificate, just five percent of the certificate's face value of
$500 million. After finalizing the agreement, Defendants were
arrested.
Over the objection of Defendants, the district court gave a willful
blindness charge to the jury. That charge stated in pertinent part:
If you find beyond a reasonable doubt that these defendants
were aware of a high probability that the Japanese bond was
fraudulent, and that they deliberately avoided learning the
truth, the element of knowledge may be inferred if defen-
dants Hitomi and Wright deliberately closed their eyes to
what would otherwise have been obvious to them or any
reasonable person under the circumstances then and there
existing. You may not find that the defendants Hitomi and
Wright acted knowingly, however, if you find that the
defendants, Hitomi and Wright, actually believed in good
faith that the bond in question was not fraudulent. A show-
ing of negligence, mistake or carelessness is not sufficient
to support a finding of knowledge.
At sentencing, Defendants argued that their total offense level
should be reduced by three levels under U.S. Sentencing Guidelines
Manual § 2X1.1 (1995), on the ground that the offense was only par-
tially completed. The district court rejected this argument, finding that
Defendants had done all of the acts they believed necessary for the
successful completion of the offense, and thus that a three level reduc-
tion under § 2X1.1 was not warranted. Hitomi timely appealed.1
On appeal, Hitomi contends that the evidence was insufficient to
support his conviction, and that he received ineffective assistance of
trial counsel. Hitomi also contends that the district court should have
reduced his offense level under USSG § 2X1.1, that the district court
erred in giving a willful blindness jury instruction, and that the district
court should have given additional jury instructions regarding the
_________________________________________________________________
1 We previously affirmed Wright's conviction and sentence. See United
States v. Wright, No. 97-4197 (4th Cir. May 12, 1998) (unpublished).
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credibility of one of the witnesses and defining the term "non-
negotiable."
II.
Hitomi contends that the evidence showed nothing more than that
he was a bystander while Wright attempted to negotiate with the Cer-
tificate, and that the evidence failed to prove he knew the Certificate
was fraudulent. However, Hitomi himself referred a potential buyer
to Wright to begin negotiations with the Certificate. Hitomi went to
South Carolina along with Wright and Muto to negotiate the Certifi-
cate as collateral for a loan, and was present during the negotiations.
Hitomi agreed to the FBI agents' suggestion that they obtain financ-
ing from a small bank which would be unaware of any problems with
the Certificate, after agents told him that the Certificate was fraudu-
lent and should not be used as collateral. Hitomi himself signed the
loan agreement as Muto's representative.
Further, Hitomi, in a transaction in which Wright did not partici-
pate, was told by another potential investor prior to the South Caro-
lina negotiations that the Certificate was fraudulent. Hitomi
responded that he did not care if the Certificate was good or not, he
had another interested party. Hitomi and Wright had also been told by
yet another potential investor that the Certificate had never been
issued by the Japanese Ministry of Finance. The evidence was suffi-
cient to show Hitomi's direct involvement at all stages of the negotia-
tions, and was sufficient to show that Hitomi had ample notice of the
fraudulent nature of the Certificate. Thus, the evidence was sufficient
to support his conviction. See Glasser v. United States, 315 U.S. 60,
80 (1942); United States v. Ellis, 121 F.3d 908, 921-22 (4th Cir.
1997), cert. denied, ___ U.S. #6D6D 6D#, 66 U.S.L.W. 3457 (U.S. Jan. 12,
1998) (No. 97-7095).
III.
The record before the court does not conclusively show that Hitomi
received ineffective assistance of counsel. Thus, we decline to con-
sider this claim on direct appeal. See United States v. Williams, 977
F.2d 866, 871 (4th Cir. 1992).
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IV.
At sentencing, Hitomi requested that his offense level be reduced
by three levels under USSG § 2X1.1, incorporated into USSG § 2F1.1
by comment. (n.9). That section provides for a three level reduction
when an offense involves an attempt, unless "the defendant completed
all the acts the defendant believed necessary for successful comple-
tion of the substantive offense."
The district court determined that Defendants had completed all the
acts they believed necessary for the successful completion of the
underlying fraud, and thus that the three level reduction under
§ 2X1.1 was not warranted. The district court's determination that
Defendants had done all of the acts they believed necessary for the
completion of the fraud is a factual one, which this court reviews for
clear error. See United States v. Barton, 32 F.3d 61, 64 (4th Cir.
1994); United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
Hitomi, Wright, and Muto came to South Carolina following nego-
tiations between Wright and a potential buyer, bringing with them the
original Certificate. After negotiating with undercover FBI agents,
Defendants agreed to accept $25 million for the Certificate, signed the
purchase and sale agreement, and were prepared to deliver the Certifi-
cate to the undercover agents. The district court did not clearly err in
finding that Defendants had done all they believed necessary to com-
plete the underlying fraud, and in refusing to apply the reduction
under § 2X1.1. See Barton, 32 F.3d at 64; see also United States v.
Studevent, 116 F.3d 1559, 1564 (D.C. Cir. 1997).
V.
This court reviews the decision of whether or not to give a particu-
lar jury instruction for abuse of discretion. See United States v.
Whittington, 26 F.3d 456, 462 (4th Cir. 1994). In this case, there was
sufficient evidence from which the jury could infer that Wright delib-
erately avoided learning that the Certificate was fraudulent; thus, the
district court did not abuse its discretion by giving a willful blindness
jury instruction.
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Hitomi learned from potential buyers that the Certificate was fraud-
ulent and should not be used as collateral, that the Certificate had
never been issued by the Japanese Ministry of Finance, and that Swiss
lenders had refused to validate the Certificate. Hitomi signed the pur-
chase and sale agreement prepared by the undercover agents, which
stated that he had made every effort, including verification with the
Japanese government, to ensure the Certificate was authentic. How-
ever, Hitomi did not attempt to verify the authenticity of the Certifi-
cate. Thus, there was sufficient evidence from which a jury could
infer that if Wright did not know the certificate was fraudulent, he
deliberately shut his eyes to that fact. See United States v. Abbas, 74
F.3d 506, 513 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W.
3794 (U.S. May 28, 1996) (No. 95-8821); Whittington, 26 F.3d at
462-63. The form of the instruction was likewise proper. See United
States v. Guay, 108 F.3d 545, 551 (4th Cir. 1997).
We also find that the district court did not commit plain error by
failing to instruct the jury regarding a witness's testimony, and in not
defining the term "non-negotiable." See United States v. Olano, 507
U.S. 725, 732 (1993); United States v. Hester , 880 F.2d 799, 803-04
(4th Cir. 1989).
Accordingly, we affirm Hitomi's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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