United States v. Hassan Pejouhesh , 603 F. App'x 347 ( 2015 )

Case: 12-20799 Document: 00513048000 Page: 1 Date Filed: 05/19/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-20799 FILED
c/w No. 13-20515 May 19, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HASSAN ALI PEJOUHESH,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-687
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Hassan Ali Pejouhesh was convicted following a jury trial of four counts
of aiding and abetting bank fraud, in violation of 18 U.S.C. §§ 1344 and 2, one
count of possessing stolen mail, in violation of 18 U.S.C. § 1708, and three
counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A. He
argues that the evidence was insufficient to support his convictions and that
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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the district court erred by denying his motion to suppress. Because he
preserved his challenge to the sufficiency of the evidence, our review is de novo.
See United States v. Alaniz, 726 F.3d 586, 600 (5th Cir. 2013).
First, Pejouhesh argues that the Government failed to prove that he
committed bank fraud because the evidence did not show that he opened the
fraudulent bank accounts at issue and instead showed that he only made
deposits into the accounts. If all permissible inferences are drawn in favor of
the jury’s verdict, a rational trier of fact could have found that Pejouhesh
committed bank fraud. See United States v. Vargas-Ocampo, 747 F.3d 299,
301 (5th Cir.) (en banc), cert. denied, 135 S. Ct. 170 (2014); United States v.
Salazar, 958 F.2d 1285, 1290-91 (5th Cir. 1992). The evidence reflected that
Pejouhesh fraudulently redirected mail to addresses that he controlled and
stole information about his victims’ identities, which he then used to open
fraudulent bank accounts; used the fraudulent bank accounts to deposit stolen
and fraudulent checks and to receive fraudulent transfers; and accessed and
conducted transactions using the specific accounts identified in the indictment.
Although there was no direct evidence that Pejouhesh opened the accounts, the
considerable circumstantial evidence showed that he, at least, was involved in
enabling the bank fraud and took actions to ensure that it succeeded; the
evidence thus was sufficient to sustain his conviction under an aiding and
abetting theory. See United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005);
United States v. Harvard, 103 F.3d 412, 420 (5th Cir. 1997).
Second, Pejouhesh contends that the Government did not prove that he
knew the mail in his possession was stolen and that the Government did not
disprove that persons who lived with him were responsible for the mail theft.
A review of the record supports that a rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. See Vargas-
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Ocampo, 747 F.3d at 301. The evidence reflected that Pejouhesh diverted mail
without the authorization of the intended recipients, controlled and accessed
the addresses to which the mail was forwarded, and possessed mail that
belonged to persons other than himself. The jury was entitled to infer that,
absent a satisfactory explanation, Pejouhesh knew that the mail that he
possessed was stolen. See Barnes v. United States, 412 U.S. 837, 845-46 (1973).
The Government did not have to exclude every reasonable hypothesis of
innocence, and the jury could have found Pejouhesh guilty based on a
reasonable construction of the evidence presented. See United States v. Jokel,
969 F.2d 132, 134 (5th Cir. 1992).
Third, Pejouhesh argues that the evidence was insufficient to prove that
he was guilty of aggravated identity theft because there was no evidence that
he used counterfeit forms of identification in the name of another person to
commit bank fraud. To the extent that he asserts that there was insufficient
evidence that he committed bank fraud and, thus, he could not be guilty of
improperly using the means of identification of another person during and in
relation to that offense, his claim is unavailing; the evidence, as detailed, was
sufficient evidence to convict Pejouhesh of bank fraud. His suggestion that the
Government had to establish that he created false identification documents or
falsely represented himself to be his victims also lacks merit; the Government
had to prove only that Pejouhesh unlawfully used a means of identification
belonging to another person, and his use of his victims’ names, dates of birth,
social security numbers and, in some cases, forged signatures was sufficient.
See 18 U.S.C. §§ 1028(d)(7), 1028A; Flores-Figueroa v. United States, 556 U.S.
646, 648 (2009);United States v. Stephens, 571 F.3d 401, 404-05 (5th Cir. 2009).
Finally, Pejouhesh argues that court erred in denying his pretrial motion
to suppress. He asserts that his consent to search his vehicles and storage unit
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was involuntary because he does not fully understand the English language.
The evidence, viewed in the light most favorable to the Government, supports
the district court’s conclusion that Pejouhesh had an adequate understanding
of the English language to provide consent. See United States v. Gomez,
623 F.3d 265, 269 (5th Cir. 2010). The testimony reflects that there was
sufficient conversation between Pejouhesh and law enforcement agents to
show that he knew English sufficiently well to comprehend the situation. See
United States v. Alvarado, 898 F.2d 987, 991 (5th Cir. 1990). Further evidence,
including other testimony offered at the suppression hearing and the
presentence report, supported that Pejouhesh had no difficulties in
understanding English. Thus, the district court’s conclusion was plausible in
light of the record. See United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002);
United States v. Basey, 816 F. 2d 980, 983 n.1 (5th Cir. 1987).
Therefore, the judgment of the district court is AFFIRMED. Pejouhesh’s
motion for reconsideration of the denial of his motion to stay the proceedings
is DENIED.
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