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United States v. Benami-Vera ( 2002 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10495
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSS BENAMI-VERA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-216-1-A
--------------------
March 27, 2002
Before JONES, SMITH, and EMILIO GARZA, Circuit Judges.
PER CURIAM:*
Ross Benami-Vera appeals his conviction and sentence on
12 counts of making false claims to the Internal Revenue Service
(IRS).    Benami-Vera argues that the district court abused its
discretion in admitting 18 tax returns into evidence.                He also
argues that the district court erred in admitting various documents
which were purported to contain his signature.            We have reviewed
the district court's evidentiary rulings related to each of the
challenged exhibits and found no abuse of discretion.                 United
*
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opinion should not be published and is not precedent except under the limited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.
No. 01-10495
-2-
States v. McClatchy,
    249 F.3d 348
    , 358 (5th Cir.), cert. denied,
    122 S. Ct. 217
     (2001).
Benami-Vera argues that there was insufficient evidence
to prove that the offenses were committed in the Northern District
of Texas.   The Government has the burden of establishing venue by
a preponderance of the evidence.     United States v. Winship,
    724 F.2d 1116
    , 1124 (5th Cir. 1984); United States v. White,
    611 F.2d 531
    , 536 (5th Cir. 1980).     The evidence shows that Benami-Vera
resided and worked in the Northern District of Texas from 1989
through 1997 and that the refunds were to be sent to the Northern
District of Texas. This is sufficient evidence to establish venue.
See United States v. Chenault,
    844 F.2d 1124
    , 1131-32 (5th Cir.
1988).
Benami-Vera argues that there was insufficient evidence
to support his convictions because the government did not prove
that he prepared the fraudulent returns.    The standard of review
for "evaluating the sufficiency of the evidence supporting a
conviction after a bench trial is whether the finding of guilt is
supported by substantial evidence, i.e., evidence sufficient to
justify the trial judge, as the trier of fact, in concluding beyond
a reasonable doubt that the defendant is guilty." United States v.
Mathes,
    151 F.3d 251
    , 252 (5th Cir. 1998).     There is no dispute
that the returns were an attempt to make false refund claims to the
IRS.   The district court determined that Benami-Vera submitted the
false claims because the signatures of the false returns matched
the signatures on other documents that the district court found had
been signed by Benami-Vera.      The district court’s conclusive
No. 01-10495
-3-
finding that Benami-Vera signed the false tax returns is sufficient
to support the conviction.          See United States v. Ismoila,
    100 F.3d 380
    , 385-88 (5th Cir. 1997); United States v. Cashio,
    420 F.2d 1132
    , 1135 (5th Cir. 1969).
Benami-Vera argues that the district court erred by
aggregating 18 of the requested refunds to determine the intended
loss from the crime to determine his offense level.                   He also
asserts that the district court should have used the actual loss to
determine his sentence. We review the district court's findings of
fact   for    clear   error   and    its   application   of   the   Sentencing
Guidelines de novo.      United States v. Anderson,
    174 F.3d 515
    , 524
(5th Cir. 1999).
Benami-Vera concedes that the precedent of this circuit
allows the district court to consider the six fraudulent returns
filed outside the statute of limitation as relevant conduct.               See
United States v. Vital,
    68 F.3d 114
    , 118 (5th Cir. 1995).              Benami-
Vera also concedes that § 2F1.1 of the pertinent November 2000
Sentencing Guidelines allows for an offense level based on intended
loss, if greater than the actual loss.         At sentencing, the district
court rejected Benami-Vera’s speculation that “[w]hoever submitted
these claims submitted multiple claims each year hoping one would
get by.”     The district court did not clearly err in determining the
amount of loss as the total of all of the refunds requested in the
false returns.
AFFIRMED.