United States v. Youseph Idriss , 436 F.3d 946 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3886
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United States of America, *
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Appellee, *
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v. *
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Youseph J.A. Idriss, *
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Appellant. *
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Appeals from the United States
No. 04-3887 District Court for the
___________ District of Minnesota.
United States of America, *
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Appellee, *
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v. *
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Trokom Harris Moore, *
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Appellant. *
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No. 04-3888
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United States of America, *
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Appellant, *
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v. *
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Youseph J.A. Idriss, *
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Appellee. *
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No. 04-3889
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United States of America, *
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Appellant, *
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v. *
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Trokom Harris Moore, *
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Appellee. *
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Submitted: September 13, 2005
Filed: February 8, 2006
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Before LOKEN, Chief Judge, WOLLMAN, and BYE, Circuit Judges.
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WOLLMAN, Circuit Judge.
Youseph Idriss and Trokom Moore were convicted of possessing and aiding
and abetting each other in possessing altered U.S. currency with intent to defraud, in
violation of 18 U.S.C. §§ 472 and 2. Moore appeals his conviction on the ground that
there was insufficient evidence to convict him of possessing “altered” currency.
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Idriss appeals his conviction on the grounds that there was insufficient evidence to
convict him and that the district court’s imposition of a restitution order based on facts
not proven to the jury violated his Fifth and Sixth Amendment rights. The
government cross-appeals on the ground that the district court erred in relying on
Blakely v. Washington, 542 U.S. 296 (2004), in declining to enhance the base offense
level on facts not admitted by the defendants nor proven to a jury. We affirm Idriss’s
and Moore’s convictions and remand for resentencing in light of United States v.
Booker, 543 U.S. 220 (2005).
I.
In 2003, Idriss and Moore participated in “black money” schemes to defraud
recent U.S. immigrants Fawaz Hamed, Won Kim, and Steve Rhee of thousands of
dollars. Idriss and Moore posed as refugees from war-torn Liberia and convinced
their victims that they possessed millions of dollars in U.S. currency that had been
blackened to remove it from Liberia. Idriss and Moore convinced their victims that
they were interested in purchasing the victims’ businesses, but that their only capital
was the blackened currency. They claimed the blackened currency could be restored
to its original condition only by using an expensive chemical to “clean” the bills.
Idriss and Moore proposed that if the victims would lend them money to purchase the
chemical, they would use the cleaned currency to purchase the victims’ businesses and
give them a one hundred percent return on their investment. Idriss and Moore gained
their victims’ trust by demonstrating the cleaning process on genuine U.S. currency
that they removed from safes that also contained worthless pieces of black paper and
by encouraging their victims to keep the genuine U.S. currency to verify its
authenticity. Idriss’s and Moore’s victims agreed to advance money for the chemical
in exchange for a portion of the cleaned U.S. currency. The victims never recovered
their initial investments, nor did they receive the promised returns.
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In total, Moore defrauded Hamed of $30,000 using the blackened money
scheme, and colluded with Idriss to defraud Kim and Rhee each of $15,000 using the
scheme. Finally, Idriss attempted to defraud Special Agent Samec, an undercover
agent, of $22,000 using the same scheme. Idriss and Moore were arrested. Moore
failed to appear for trial and a warrant was issued for his arrest. Moore surrendered
to the authorities nearly three months later. Idriss and Moore were convicted of three
counts each of possessing and aiding and abetting each other in possessing altered
U.S. currency with intent to defraud.
The district court sentenced Idriss to five years of probation and Moore to six
months of imprisonment. The district court declined to enhance these sentences from
the base offense level of six based on the amount of loss to the victims and the
obstruction of justice by Moore because these facts were neither found by the jury nor
admitted to by the defendants. In addition to the probation and imprisonment orders,
the district court ordered Idriss and Moore to pay, jointly and severally, restitution of
$30,000—the amount of loss to Kim and Rhee—and ordered Moore to pay an
additional $30,000 for the loss to Hamed.
II.
Moore argues that the evidence presented to the jury did not establish the
existence of “altered” U.S. currency. He asserts that the term “alter” means that some
change occurs in the object while the object retains its essential character and that this
is not the case here. Instead, Moore maintains that the black substance “obscured”
the currency so that it looked like worthless black paper, thus losing its essential
character.
We review de novo the sufficiency of the evidence to sustain a conviction.
United States v. Hill, 410 F.3d 468, 471 (8th Cir. 2005). We must uphold the jury’s
verdict if, “based on all the evidence and all reasonable inferences in favor of the
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verdict, any reasonable juror could find the defendant guilty beyond a reasonable
doubt.” Id. “We will reverse only if the jury must have had a reasonable doubt
concerning one of the essential elements of the crime.” United States v. Patten, 397
F.3d 1100, 1102 (8th Cir. 2005) (internal quotations omitted).
A reasonable juror could have found Moore guilty beyond a reasonable doubt
of possessing altered U.S. currency. The plain meaning of the term “alter” is “to cause
to become different in some particular characteristic (as measure, dimension, course,
arrangement, or inclination) without changing into something else.” Webster’s Third
New International Dictionary 63 (1981); see also United States v. Hamilton, 332 F.3d
1144, 1149–50 (8th Cir. 2003) (applying a term’s plain meaning when a statutory
interpretation question was raised in the context of a sufficiency of the evidence
claim); United States v. Hall, 801 F.2d 356, 359 (8th Cir. 1986) (quoting a dictionary
definition of the term “alter”). Moore’s argument that this does not include blackened
currency is unpersuasive.1 Blackening currency makes the currency different, yet it
does not change the currency into something else. The government presented
testimony that Moore possessed blackened currency that was used to defraud Hamed,
Kim, and Rhee. See, e.g., Tr. at 109–10, 434 (explaining how Moore possessed
blackened U.S. currency and removed the black coating with a special chemical). The
jury acted within reason in determining that Moore altered U.S. currency.
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The district court instructed the jurors that the “alteration of an obligation of
the United States with intent to defraud need not be an alteration which destroys or
impairs the validity of the obligation.” Moore has
raised no challenge to this instruction.
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III.
We turn next to Idriss’s claim that the government’s evidence was insufficient
to sustain his conviction. Idriss argues that the evidence presented to the jury did not
establish beyond a reasonable doubt that he had the requisite intent to commit the
crime of possessing altered U.S. currency with intent to defraud Kim, Rhee, and
Samec. He argues that, to prove intent, the government had to prove knowledge that
the safes did not contain genuine U.S. currency, and he contends that the government
failed to do this.
We conclude that there was sufficient evidence to convict Idriss on all three
counts of the indictment. The government need not prove intent directly and can often
prove intent by circumstantial evidence. United States v. Londondio, 420 F.3d 777,
786 (8th Cir. 2005); Patten, 397 F.3d at 1102–03; United States v. Flynn, 196 F.3d
927, 929 (8th Cir. 1999). Intent “can be inferred from the facts and circumstances
surrounding a defendant’s actions.” Patten, 397 F.3d at 1102–03; Flynn, 196 F.3d at
929. For instance, a “jury could reasonably infer guilty knowledge and intent to
defraud from . . . inconsistent statements” and furtive conduct by the accused. United
States v. Berry, 599 F.2d 267, 269 (8th Cir. 1979) (per curiam); United States v. Pitts,
508 F.2d 1237, 1240 (8th Cir. 1974). The government presented ample evidence of
Idriss’s furtive behavior. Idriss used a false name with his victims. Idriss refused to
present identification when Rhee asked him to do so, even though he possessed a valid
American driver’s license, a social security card, and an INS employment
authorization card. Idriss claimed he was a foreign visitor staying in a hotel room
with $1.5 million in blackened currency, but the government presented evidence that
Idriss had a local address and did not stay in a hotel room during the relevant period.
Idriss also claimed that he was flying to Chicago to buy the expensive chemical, but
the government presented evidence that Idriss never flew during that time. Finally,
Idriss carried the briefcase containing blackened currency and was able to pick out
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three bills that were genuine U.S. currency from among the worthless pieces of black
paper. From all of this evidence, a jury could reasonably conclude that Idriss had the
requisite intent to possess altered U.S. currency with intent to defraud.
IV.
Next, we turn to the government’s assertion that, based on Booker, the district
court erred in finding that the Sixth Amendment precludes enhancing Idriss’s and
Moore’s sentences based upon facts not proven to a jury. The government preserved
any Booker error by arguing that Blakely does not apply to the federal sentencing
guidelines. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc).
Accordingly, we review de novo whether the district court properly applied the
guidelines. See United States v. Hadash, 408 F.3d 1080, 1082 (8th Cir. 2005) (stating
that the first inquiry under Booker is whether the district court properly applied the
guidelines); United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005).
In Blakely, the Supreme Court held that a court cannot enhance a sentence
beyond the statutory maximum based on judicial findings that were neither admitted
by the defendant nor found by a jury beyond a reasonable doubt. 542 U.S. at 303–04;
cf. Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any fact that increases
a sentence beyond the prescribed statutory maximum must be proven beyond a
reasonable doubt to a jury). In Booker, the Supreme Court extended Blakely’s
holding to the federal guidelines, holding that they run “afoul of the Sixth Amendment
insofar as the scheme [is] based on certain facts found by the sentencing judge” and
requires the judge “to impose a more severe sentence than could have been imposed
based on facts found by the jury or admitted by the defendant.” United States v.
Marcussen, 403 F.3d 982, 983 (8th Cir. 2005) (citing Booker, 125 S. Ct. at 750). A
district court may, however, enhance a defendant’s sentence based on its own fact
findings so long as the district court recognizes the guidelines scheme to be merely
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advisory and does not enhance the sentence beyond the statutory maximum. See
Booker, 125 S. Ct. at 756–57, 764–68.
In sentencing Idriss and Moore, the district court stated that, “given the
Supreme Court’s decision in the case of [Blakely],” it could not increase the base
offense level without a jury determination or a defendant’s admission. A six-month
sentence enhancement for the amount of money defrauded or a two-month
enhancement for obstruction of justice, however, would still be within the statutory
maximum for the crime. See 18 U.S.C. § 472. Thus, the district court erred in
viewing the Sixth Amendment’s limitation on the guidelines as excluding all sentence
enhancements based upon the district court’s own fact finding, even if they are
discretionary and within the statutory maximum.
When the guidelines are incorrectly applied, we remand for resentencing unless
the error was harmless, such as when the district court would have imposed the same
sentence absent the error. Hadash, 408 F.3d at 1082. The burden of proving harmless
error falls upon the beneficiary of the error—here, Idriss and Moore. See United
States v. Bruce, 413 F.3d 784, 785 (8th Cir. 2005). Given that the error here was not
of constitutional magnitude, cf. United States v. Turnbough, 425 F.3d 1112 (8th Cir.
2005), Idriss and Moore must establish harmless error by showing that no “grave
doubt” exists as to whether the district court’s “error substantially influenced the
outcome of the [sentencing] proceedings.” United States v. Mendoza-Mesa, 421 F.3d
671, 673 (8th Cir. 2005). Because Idriss and Moore have not met this burden, we
remand for resentencing in light of Booker.
Finally, Idriss argues that the district court’s imposition of a $30,000 restitution
order based on judicially found facts violates his Fifth and Sixth Amendment rights.
This claim is without merit. In United States v. Carruth, we held that neither
Apprendi nor Blakely prohibits judicial fact finding for restitution orders, and Booker
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does not affect restitution orders. 418 F.3d 900, 904 (8th Cir. 2005). The district
court’s determination of a permissible restitution award is limited only by the scope
of the indictment. United States v. Ross, 279 F.3d 600, 609 (8th Cir. 2002) (Ross II);
United States v. Ramirez, 196 F.3d 895, 900 (8th Cir. 1999). The scheme to defraud
Kim and Rhee of $30,000 falls within the scope of the indictment, and thus the district
court did not err in ordering Idriss to pay restitution in this amount.
Idriss’s and Moore’s convictions are affirmed, but their cases are remanded for
resentencing in accordance with the views set forth in this opinion and the holding in
Booker.
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