United States v. Azam Doost ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 23, 2020 Decided July 6, 2021
No. 19-3079
UNITED STATES OF AMERICA,
APPELLEE
v.
AZAM DOOST, ALSO KNOWN AS ADAM DOOST, ALSO KNOWN
AS MOHAMMAD AZAM DOOST, ALSO KNOWN AS MOHAMMAD
AZIM,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cr-00109-1)
Aaron Schwartz argued the cause for appellant. With him
on the brief were Glenn Seiden and Brooke L. Stevens.
Scott A.C. Meisler, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. With him on
the brief were Michael P. McCarthy, Trial Attorney, and Brian
C. Rabbitt, Acting Assistant Attorney General. Jeremy R.
Sanders, Attorney, entered an appearance.
Before: ROGERS, KATSAS and RAO, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: A jury convicted Azam Doost for his
involvement in a scheme to defraud the Overseas Private
Investment Corporation, a government agency. He now
appeals his convictions for major fraud against the United
States, wire fraud, false statements, and money laundering. He
principally argues that he received ineffective assistance of
counsel because his lawyer failed to argue that some counts of
the indictment were multiplicitous, time-barred, or both, and
also because counsel failed to admit certain exculpatory
evidence at trial. Because Doost fails to demonstrate that
counsel provided ineffective assistance, we affirm his
convictions.
I.
Doost and his brother owned a company in the United
Arab Emirates called Equity Capital Group. A subsidiary of the
company, Equity Capital Mining (the “Mine”), secured a ten-
year lease on a marble mine in Afghanistan. To finance the
mining operations, Doost executed a loan agreement between
the Mine and the Overseas Private Investment Corporation
(“OPIC”). At the time, OPIC was a federal agency that
supported “investments by the United States government in
emerging markets worldwide to foster the development and
growth of free markets.” App. 3.1 OPIC loaned the Mine $15.8
million for its development, maintenance, and operating
expenses. The loan agreement made Doost personally
responsible for a matching capital contribution. The agreement
1
In 2018, after the events relevant to this case had transpired, OPIC’s
functions were transferred to the United States International
Development Finance Corporation. See Better Utilization of
Investments Leading to Development Act of 2018, §§ 1464, 1470(a),
Pub. L. No. 115-254 Div. F, 132 Stat. 3186, 3513, 3515–16.
3
also required Doost to disclose all transactions between the
Mine and certain parties closely affiliated with the Mine,
including Doost and his brother. Pursuant to the loan
agreement, Doost submitted three disbursement requests to
OPIC—in the amount of $7 million on April 18, 2010, $7
million on July 15, 2010, and $1.8 million on November 28,
2010.
Doost’s scheme to defraud OPIC proceeded through two
avenues. First, he failed to disclose to OPIC even a single
affiliated transaction—when there were actually many
affiliated transactions that enriched Doost, his brother, and
other relatives with the Mine’s OPIC-backed money. Second,
he submitted invoices to OPIC for equipment purchases that
were false or contained false information. For example, Doost
sought reimbursement for sham purchases, overbilled for
actual purchases, and double-billed OPIC for expenditures
already reimbursed by another funding source. The OPIC loan
eventually went into default after the Mine made no principal
payments and failed to pay nearly $2 million in accrued
interest.
The government returned a 23-count indictment against
Doost, alleging major fraud against the United States, wire
fraud, false statements, and money laundering. The jury
convicted Doost on twenty counts.2 The district court
sentenced him to fifty-four months of incarceration, followed
by thirty-six months of supervised release, and ordered him to
make restitution of $8,940,742 to the United States.
Doost then filed a combined motion under Rules 29 and
33 of the Federal Rules of Criminal Procedure for judgment of
acquittal and for a new trial, claiming that trial counsel was
ineffective by failing to object to certain counts of the
indictment as time-barred, multiplicitous, or both, and also by
2
Doost was acquitted on three of eight counts of money laundering.
4
failing to admit certain evidence at trial that would have been
favorable to Doost, including calling certain witnesses. The
district court denied Doost’s motion. It held that Doost was not
prejudiced by any of counsel’s decisions not to introduce
additional evidence because ample evidence would still have
supported his conviction. United States v. Doost, 2019 WL
1560114, at *4–7 (D.D.C. Apr. 10, 2019). The district court
also held that Doost was not prejudiced by counsel’s failure to
object to the indictment as multiplicitous because it was not
multiplicitous, so such an objection would have been
unavailing. Id. at *8–10.
Lastly, with respect to the timeliness of the indictment, the
district court held that although all but two counts of the
indictment were untimely on their face, the Wartime
Suspension of Limitations Act (“WSLA”) tolled the limitations
period for the challenged major fraud count. See Act of June
25, 1948, Pub. L. No. 80-772, § 3287, 62 Stat. 683, 828
(codified as amended at 18 U.S.C. § 3287). When the United
States is engaged in foreign hostilities, the WSLA tolls the
limitations period under three circumstances: for crimes (1)
“involving … fraud against the United States,” (2) “committed
in connection with the … handling … of any real or personal
property of the United States,” or (3) “committed in connection
with” contracts that are in turn “connected with or related to the
prosecution of the war or directly connected with or related to
the authorized use of the Armed Forces.” 18 U.S.C. § 3287.
Because the WSLA tolled certain counts of the indictment
and the jury could reasonably have found that it tolled the rest,
the district court determined that Doost could not show
prejudice from counsel’s failure to challenge the indictment as
untimely, so there was no ineffective assistance of counsel. See
Doost, 2019 WL 1560114, at *11–14; United States v. Doost,
2019 WL 3344277 (D.D.C. July 24, 2019). Doost timely
appealed.
5
II.
The Sixth Amendment provides a criminal defendant with
the right “to have the Assistance of Counsel for his defence,”
U.S. CONST. amend. VI, which the Supreme Court has held
encompasses the right to effective assistance of counsel,
Strickland v. Washington, 466 U.S. 668 (1984). To prevail on
a claim of ineffective assistance, the defendant must show both
that his counsel’s performance was deficient and that the
deficient performance prejudiced him. Id. at 687.
With respect to deficient performance, we assess whether
counsel’s performance “fell below an objective standard of
reasonableness,” while “indulg[ing] a strong presumption that
counsel’s conduct [fell] within the wide range of reasonable
professional assistance.” Id. at 688, 689. With respect to
prejudice, we consider whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
To meet this standard, the defendant need demonstrate only a
“‘probability sufficient to undermine confidence’ in the
verdict.” United States v. Nwoye, 824 F.3d 1129, 1135 (D.C.
Cir. 2016) (quoting Strickland, 466 U.S. at 694). The defendant
bears the burden of demonstrating both elements of ineffective
assistance under the Strickland standard. Weaver v.
Massachusetts, 137 S. Ct. 1899, 1910 (2017).
We review the district court’s rulings on ineffective
assistance claims de novo. United States v. Vyner, 846 F.3d
1224, 1227 (D.C. Cir. 2017).
A.
Doost asserts that counsel performed deficiently by not
challenging the indictment as multiplicitous. We conclude that
the counts were not multiplicitous, so Doost has failed to
demonstrate ineffective assistance because “[t]he failure to
6
raise a meritless objection is not deficient performance.”
United States v. Islam, 932 F.3d 957, 964 (D.C. Cir. 2019).
A multiplicitous indictment charges the same crime in
multiple counts, which violates the Fifth Amendment’s
prohibition against double jeopardy. U.S. CONST. amend. V.
“The Fifth Amendment … protects not only against a second
trial for the same offense, but also against multiple
punishments for the same offense.” Whalen v. United States,
445 U.S. 684, 688 (1980) (cleaned up). Multiplicity is an
indictment defect that the defendant must challenge before
trial. See FED. R. CRIM P. 12(b)(3)(B)(ii); United States v.
Burroughs, 810 F.3d 833, 837 (D.C. Cir. 2016). Doost made
no such pretrial motion here. Rule 12 excuses untimely
indictment challenges, however, “if the party shows good
cause.” FED. R. CRIM. P. 12(c)(3). “Good cause” includes
ineffective assistance of counsel. See United States v. Weathers
(“Weathers I”), 186 F.3d 948, 952–53, 958–59 (D.C. Cir. 1999)
(identifying ineffectiveness as a “cause” for a forgone
multiplicity challenge).
Doost claims the indictment suffered from two multiplicity
defects. First, the three counts of major fraud were
multiplicitous because each of his three disbursement requests
to OPIC was charged separately rather than as a single
fraudulent scheme. Second, two of the false statement counts
were multiplicitous because the two statements were made in
the same document and therefore should have been charged as
a single count. We take each claim in turn.
1.
Doost was charged with three counts of major fraud
corresponding to the $7 million disbursement request made in
April 2010, the $7 million disbursement request in July 2010,
and the $1.8 million disbursement request in November 2010.
Each disbursement request was treated as a separate violation
7
of Section 2(a) of the Major Fraud Act. Pub. L. No. 100-700,
§ 2(a), 102 Stat. 4631, 4631 (codified as amended at 18 U.S.C.
§ 1031(a), (a)(2)). That provision makes it a crime to
“knowingly execute[] … any scheme or artifice with the intent
… (1) to defraud the United States; or (2) to obtain money or
property by means of false or fraudulent pretenses,
representations, or promises” in connection with a “grant,
contract, subcontract, subsidy, [or] loan” with or from the
United States if the value of the underlying grant, loan, or
contract is $1,000,000 or more. 18 U.S.C. § 1031(a). Doost
argues that entering into the loan agreement constituted a single
fraudulent scheme and should have been charged as a single
violation of the Major Fraud Act, so it was ineffective
assistance to fail to challenge the counts as multiplicitous.
In examining claims of multiplicitous indictments, this
court first determines what offense Congress made “the unit of
prosecution,” for instance, whether the statute treats the whole
fraudulent scheme as the unit of prosecution or every act within
that scheme. Bell v. United States, 349 U.S. 81, 83 (1955); see
also Weathers I, 186 F.3d at 952. While we have not previously
determined the unit of prosecution under the Major Fraud Act,
we agree with the district court that the appropriate unit of
prosecution is an “execution” of a fraudulent scheme. See
Doost, 2019 WL 1560114, at *8–9. The statutory language
criminalizes the “execut[ion]” or the
“attempt[ed] … execut[ion]” of the fraudulent scheme, not the
scheme itself.3 Moreover, we have similarly held that the
nearly identical language in “[t]he bank fraud statute makes
each ‘execution’ of a fraudulent scheme punishable as a
3
Other circuits also have interpreted the Major Fraud Act to treat
each “execution” of the fraudulent scheme as the unit of prosecution.
See, e.g., United States v. Sain, 141 F.3d 463, 473 (3d Cir. 1998)
(“By its plain language, the statute criminalizes each knowing
‘execution’ of the fraudulent scheme.”).
8
separate count.”4 United States v. Bruce, 89 F.3d 886, 889
(D.C. Cir. 1996); see also United States v. Reitmeyer, 356 F.3d
1313, 1321 n.10 (10th Cir. 2004) (citing the court’s parallel
interpretations of the bank fraud statute and the Major Fraud
Act); United States v. Sain, 141 F.3d 463, 473 (3d Cir. 1998)
(same). Absent some contrary indication, we presume identical
terms found in similar statutes should be interpreted similarly.
“Not every act in furtherance of [the fraud] is a separate
‘execution’ of the scheme,” so our task is to distinguish
between non-chargeable acts in furtherance of the fraud, and
chargeable executions of the fraud. Sain, 141 F.3d at 473; see
also Bruce, 89 F.3d at 889 (“[A]cts in furtherance of the
scheme cannot be charged as separate counts unless they
constitute separate executions of the scheme.”). Three factors
weigh in favor of finding that each request for a disbursement
of the loan proceeds was a separate execution of Doost’s
fraudulent scheme.
First, we consider whether an identifiable sum of money
can be traced to a specific fraudulent transaction. See United
States v. Gallant, 537 F.3d 1202, 1226 (10th Cir. 2008). If so,
“there is likely to be a separate execution of the scheme to
defraud.” United States v. Brandon, 17 F.3d 409, 422 (1st Cir.
1994); see also Sain, 141 F.3d at 473 (finding separate charges
for each fraudulent claim submitted pursuant to a scheme were
not multiplicitous “because each sought to obtain a separate
amount of money from the government”). This case easily
4
See 18 U.S.C. § 1344 (punishing “[w]hoever knowingly executes,
or attempts to execute, a scheme or artifice—(1) to defraud a
financial institution; or (2) to obtain [money or property of] a
financial institution, by means of false or fraudulent pretenses,
representations, or promises”). The only difference between the two
statutes is that the Major Fraud Act includes an intent element. We
see no reason why the intent element should affect the unit-of-
prosecution analysis, and the parties do not argue otherwise.
9
meets that criterion, as the indictment identifies the sums of
money that Doost requested in each of the three disbursements.
Second, we ask whether each charge involved the violation
of “a new and independent obligation to be truthful.” United
States v. Molinaro, 11 F.3d 853, 860 n.16 (9th Cir. 1993). Here,
each charge did. Every disbursement request required Doost to
prepare and submit distinct invoices and progress reports. And
each set of reports contained lies and misrepresentations
supporting Doost’s claims for payment from the government,
which militates in favor of charging the disbursement requests
separately.
Third, we consider the language of the indictment and
whether it “sufficiently describe[s] two [or more] separate and
distinct offenses.” Kerrigan v. United States, 644 F.2d 47, 49
(1st Cir. 1981); see also United States v. Benoit, 713 F.3d 1, 17
(10th Cir. 2013); Bruce, 89 F.3d at 890. Doost’s indictment
describes the numerous sets of documents that Doost had to
submit prior to each disbursement. It also plainly states that on
the three dates when Doost made disbursement requests, he
“did knowingly execute and attempt to execute the [fraudulent]
scheme.” App. 10. In other words, the indictment describes
three distinct executions of the scheme.
Based on these considerations, we conclude the decision
to charge Doost with three separate executions of a fraudulent
scheme was permissible, so trial counsel did not perform
ineffectively by failing to lodge a meritless multiplicity
challenge to the indictment.
Doost attempts to resist this conclusion by arguing that
agreeing to the loan constituted a single execution of the
scheme. Relying on United States v. Lilly, 983 F.2d 300 (1st
Cir. 1992), he maintains that where a defendant has entered into
a single loan with a single lender for a single project, multiple
misstatements during the course of that lending relationship
10
constitute a single fraud. But Lilly is inapposite because it
focused on the repetition of a single misstatement about “a
single aspect of the transaction” made to secure a single loan to
fund a single purchase. Id. at 303. By contrast, Doost submitted
different fraudulent documents about many different
purchases, engaging in fraud and misrepresentations in three
separate disbursement requests made over six months. Doost
flouted multiple, independent obligations to tell the truth, and
OPIC transferred separate payments of $7 million, $7 million,
and $1.8 million, pursuant to his separate misrepresentations.
Doost also repeatedly asserts that the loan agreement was
the only execution of the scheme because entering into the loan
agreement immediately put OPIC at risk for the entire $15.8
million, thereby fully executing the scheme. But the structure
of the loan agreement belies this argument. It contained
numerous conditions that Doost had to satisfy prior to receiving
the first disbursement. Doost also had to satisfy several other
requirements as “conditions precedent to each disbursement.”
Supplemental Appendix (“Supp. App.”) 229 (capitalization
altered). These requirements included, for instance, submitting
an extensive list of “[f]inancial [s]tatements” and “reports” to
OPIC, such as projections of future revenue, progress reports
on the Mine, funds available, lists of affiliate transactions, and
more. Supp. App. 230, 232. If Doost did not continue to meet
these conditions, OPIC could cut off his funding. Thus,
although the loan agreement was for $15.8 million, Doost had
to meet additional criteria to receive the disbursements, which
supports treating the disbursement requests as separate
“executions.”
In light of the terms of the indictment, the independent
obligation for truthfulness that attached to each disbursement
request, and the ease of pinpointing amounts of money that
changed hands via these disbursements because of Doost’s
frauds, charging this scheme in three counts was not
11
multiplicitous. It would have been meritless for Doost’s
counsel to raise a multiplicity challenge to the major fraud
counts and therefore Doost fails to demonstrate ineffective
assistance. See Islam, 932 F.3d at 964.
2.
Doost also lodges a belated multiplicity challenge to two
of the false statement counts. The indictment charged that
Doost falsely attested the Mine purchased a $596,000
blockcutter from Gaspari Menotti, when the Mine had made no
such purchase. The indictment charged in a separate count that
Doost falsely attested two chainsaws bought from the Afghan
Stone Company were costs of the Mine, but they did not qualify
as reimbursable Mine expenses because another organization
had already paid for them. Doost contends that because he
made both these statements in the same disbursement request
that he submitted to OPIC, they cannot be charged separately,
and his counsel was ineffective for not raising a challenge to
the indictment on these grounds. Once more, we disagree.
Doost’s false statements were charged under an OPIC-
specific false statement provision penalizing “[w]hoever
knowingly makes any false statement or report … for the
purpose of influencing in any way the action of [OPIC] with
respect to any … loan[] [or] equity investment, … or any
change or extension of any such … loan[] [or] equity
investment.” Jobs Through Exports Act of 1992, Pub. L. No.
102-549, § 105(b), 106 Stat. 3651, 3653 (codified at 22 U.S.C.
§ 2197(n)). The unit of prosecution here focuses on
transactions, namely false statements or reports made to OPIC
with respect to, inter alia, loans. We have previously
considered the appropriate unit of prosecution under a
substantially similar false statement provision and explained
that it “is targeted at fraudulent loan transactions, rather than
the particular falsehoods used to achieve the illegal
transaction.” United States v. Mangieri, 694 F.2d 1270, 1282
12
(D.C. Cir. 1982) (cleaned up) (identifying the unit of
prosecution under 18 U.S.C. § 1014). Here, Doost made two
false statements about two transactions, requesting one
payment of $596,000 for the blockcutter and another payment
of $821,742 for the chainsaws. OPIC was influenced to take
two actions, namely paying distinct, identifiable sums of
money for Doost’s two purchases. We hold that Doost was
properly charged with two counts of making false statements
under 22 U.S.C. § 2197(n).
Nonetheless, Doost argues that because his statements
were made in a single disbursement request, they should have
been charged as a single count in the indictment. He relies on
language in Mangieri that “the making of a number of false
statements to a lending institution in a single document
constitutes only one criminal violation.” Id. at 1281 (cleaned
up). In Mangieri, however, we explicitly left open “the
possibility that under some circumstances multiple
misrepresentations [in a single document] might justify
separate offenses.” Id. at 1282. Here, Doost’s two false
statements corresponded to two separate purchases and
resulted in two OPIC disbursements to separate organizations.
These circumstances justified charging separate offenses. The
facts here are also distinguishable from the transactions in other
cases Doost cites, in which multiple false statements in a
document resulted in a single payment. See, e.g., United States
v. Sahley, 526 F.2d 913, 918 (5th Cir. 1976) (finding a
multiplicity problem with an indictment that separately
charged false statements that “constituted a single
transaction”); see also United States v. Sue, 586 F.2d 70, 71
(8th Cir. 1978) (per curiam) (following Sahley).
Because the false statement counts are not multiplicitous,
it would have been meritless for Doost’s counsel to file a
pretrial motion to consolidate these counts. Doost therefore
13
fails to establish deficient performance. See Islam, 932 F.3d at
964.
B.
Doost next argues counsel was ineffective for failing to
object to the timeliness of counts twelve through twenty of the
indictment, which charged him with false statements and
money laundering. We hold that, regardless of whether certain
counts were actually time-barred, counsel reasonably decided
that a timeliness challenge was likely to fail and thus did not
perform deficiently by failing to raise that challenge.
We note at the outset that Doost did not raise his statute of
limitations challenge until after trial. See Musacchio v. United
States, 136 S. Ct. 709, 716–18 (2016) (explaining that the
federal statute of limitations contained in 18 U.S.C. § 3282 is
not jurisdictional and can be waived or forfeited). The parties
agree that Doost can raise his timeliness challenge now only if
good cause—his attorney’s ineffective assistance—excuses his
failure to raise it earlier. Doost, 2019 WL 3344277, at *1; see
also Musacchio, 136 S. Ct. at 718 (explaining that to the extent
plain error review is available when the defendant “fail[ed] to
raise [the statute of limitations] at or before trial,” it “cannot be
a plain error” for the district court not “to enforce an unraised
limitations defense”).
Ordinarily, the challenged counts in Doost’s indictment
would be subject to the five-year limitations period for federal
crimes. See 18 U.S.C. § 3282(a). Much of the conduct alleged
in the indictment occurred more than five years before June 7,
2017, the date of the indictment. Timeliness turns on whether
the Wartime Suspension of Limitations Act (“WSLA”) tolls the
limitations period for the counts at issue.
The question of how the WSLA applies in a case such as
this one is an issue of first impression in this circuit and one
14
without a clear answer. As relevant here, the WSLA tolls the
limitations period for any offense
(1) involving fraud or attempted fraud against the
United States or any agency thereof in any manner,
whether by conspiracy or not, or (2) committed in
connection with the acquisition, care, handling,
custody, control or disposition of any real or personal
property of the United States, or (3) committed in
connection with the negotiation, procurement, … [or]
payment for, … any contract, subcontract, or purchase
order which is connected with or related to the
prosecution of [a] war or directly connected with or
related to [an] authorized use of the Armed Forces.
18 U.S.C. § 3287.
For offenses to which the WSLA applies, the limitations
period is tolled “until [five] years after the termination of
hostilities.” Id.Doost argues that the WSLA does not toll the limitations
period for any of the false statement and money laundering
counts. The district court held that subclause one does not
apply to any of these counts, and neither party challenges that
ruling on appeal. Doost argues subclause two does not toll the
limitations period for the crimes at issue here because that
subclause pertains only to fraudulent transactions involving
real or personal property, and Doost claims that cash and loan
proceeds are neither because they are intangible. And he
contends that tolling under subclause three is not available
because his marble mining activities bore no direct relation to
the authorized use of military force in Afghanistan, so they are
not “connected with or related to the prosecution of the war or
directly connected with or related to the authorized use of the
Armed Forces.” Id. § 3287(3).
15
Even if Doost is correct that certain counts are untimely,
that would not be sufficient because “[t]he crux of an
ineffective assistance claim is not simply whether trial counsel
neglected to press a viable legal argument, but whether
counsel’s failure to do so was objectively unreasonable under
the circumstances.” United States v. Weathers (“Weathers II”),
493 F.3d 229, 234 (D.C. Cir. 2007); cf. Harrington v. Richter,
562 U.S. 86, 109 (2011) (explaining that courts may not “insist
counsel confirm every aspect of the strategic basis for his or
her actions”). We need not resolve the merits of Doost’s claim
in order to conclude that counsel performed reasonably, and not
deficiently, in forgoing a challenge to the timeliness of the
indictment.
In this case, Doost’s counsel explained that he believed a
challenge to the timeliness of the indictment would have failed.
Counsel, who had been practicing federal criminal defense law
for over fifteen years when Doost’s trial began, swore in an
affidavit that he was aware of a potential timeliness challenge
from the outset, and he prepared to make such a challenge. He
then examined the WSLA and determined it would apply to toll
the limitations period with respect to all counts. He concluded
that because of the continuing hostilities in Afghanistan, the
WSLA generally applied, and he further concluded that
subclause one tolled the limitations period for the major fraud
counts. On this score, counsel had good company: The district
court made the same determinations, which Doost contested
below but no longer does on appeal. See Doost, 2019 WL
1560114, at *11–12.
Counsel also reasonably determined that the WSLA would
toll the other counts because they charge crimes “committed in
connection with the acquisition, care, handling, custody,
control or disposition of any real or personal property of the
United States.” 18 U.S.C. § 3287(2). Doost argues that the
statutory language “real or personal property” applies only to
16
tangible property, not to cash, money, or loan proceeds. We
need not conclusively adjudicate the merits of this dispute; it is
enough to conclude that counsel’s reading of the statute,
whereby “personal property” includes cash or loan proceeds,
was reasonable. See Weathers II, 493 F.3d at 234.
OPIC was an agency of the United States that supported
“investments by the United States government”—that is,
investments of money belonging to the United States. App. 3;
see also Supp. App. 2–3. Doost committed fraud and made his
false statements in connection with a scheme to “acqui[re]”
money belonging to the United States, exactly the type of crime
covered by the WSLA. 18 U.S.C. § 3287(2). Moreover, in
ordinary legal meaning, cash, money, loan proceeds, or other
intangibles qualify as “personal property.” See, e.g., Dickman
v. Comm’r, 465 U.S. 330, 337 (1984) (“[T]he right to use
money [is] a cognizable interest in personal property.”);
Personal Property, BLACK’S LAW DICTIONARY (11th ed. 2019)
(defining personal property as “[a]ny movable or intangible
thing that is subject to ownership and not classified as real
property”).
Counsel reasonably thought subclauses one and two tolled
the limitations period for all counts, which meant a timeliness
challenge would fail. In forgoing the timeliness challenge,
counsel was “not required to have a tactical reason” other than
the “reasonable appraisal” of the likelihood that the challenge
would fail. Knowles v. Mirzayance, 556 U.S. 111, 127 (2009);
see also Harrington, 562 U.S. at 110 (“Just as there is no
expectation that competent counsel will be a flawless strategist
or tactician, an attorney may not be faulted for a reasonable
miscalculation or lack of foresight.”). Doost cannot show
ineffective assistance, so his failure to raise the statute of
limitations defense timely cannot be excused.
17
III.
Doost additionally asserts that counsel performed
ineffectively by failing to introduce the entire email exchange
from which his false statement conviction in count fifteen
arose. He argues that the exchange shows the question he was
answering was fundamentally ambiguous, so his answer cannot
serve as the predicate for a false statement indictment. We find
this claim without merit. Doost correctly notes that “[i]f … a
question is ‘excessively vague’ or ‘fundamentally ambiguous,’
the answer [to the question] may not, as a matter of law, form
the basis of a prosecution for perjury or false statement.”
United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003)
(per curiam) (cleaned up). Nothing about the exchange,
however, was fundamentally ambiguous.
The indictment charged that in response to an email from
OPIC representative John Aldonas, Doost averred “[t]hat there
were no affiliate transaction[s] that occurred during the quarter
ending September 30, 2010.” App. 13. The government
charged this as a false statement. The email from Aldonas,
which trial counsel did not admit into evidence, but Doost now
contends he should have in order to emphasize the ambiguity
of the exchange, read as follows:
Adam,5
Your attachments look like a forward looking list
of 2011 affiliated transactions between [the Mine] and
your marble finishing company.
Perhaps I have confused things, but we are
looking for you to certify quarterly, along with the
quarterly financial statements, whatever affiliated
5
“Adam” is an alternate name that Doost has occasionally used; this
email is addressed to Azam Doost.
18
transactions have taken place in that accounting
period, and that they have taken place on an arm[’]s-
length basis (with the evidence of this being the sales
and volume detail along the lines you have just
provided for 2011). If it is the case – since for example
the marble finishing operation is not yet processing
material – then you could simply certify for the
quarter ending Sept[ember] 30, 2010, that there were
no Affiliated Transactions. That said, I would ask that
you carefully read the definition of Affiliated
Transactions so you can consider what if any types of
transactions might fit the reportable category.
Doost, 2019 WL 1560114, at *2 n.1.
There is nothing fundamentally ambiguous about this
exchange, nor is there a reasonable probability that the jury
would have decided differently had it been aware of Aldonas’s
email. The email clearly asks Doost to “carefully read the
definition of Affiliated Transactions” before certifying that
there were none. Aldonas says Doost can “simply certify for
the quarter … that there were no Affiliated Transactions,” but
only “[i]f it is the case” that all transactions “have taken place
on an arm[’]s-length basis.” Determining how a hypothetical
jury would have analyzed additional evidence is not a rock-
solid endeavor. “It is inherently a speculative exercise,” and
this court has not prescribed any means of doing it other than
using its judgment. Nwoye, 824 F.3d at 1139. In our judgment,
Doost falls far short of showing a reasonable probability that
introducing this email into evidence would have resulted in
acquittal of this false statement charge on the basis of
ambiguity in the question. The directions the email provided
are simply not that complicated.
Moreover, Doost’s direct answer undercuts his claims that
the directions were ambiguous. He forthrightly replied that
19
there were no affiliated transactions. In a typical fundamental
ambiguity case, the defendant offers an interpretation of the
question where, if his interpretation had been correct, his
answer would have been truthful. See, e.g., United States v.
Farmer, 137 F.3d 1265, 1270 (10th Cir. 1998). Doost does
not—and could not—explain what question he was purportedly
answering truthfully when he claimed there were no affiliated
transactions.6
In sum, Doost fails to demonstrate a reasonable probability
that the exchange leading to this false-statement charge was
fundamentally ambiguous or would have been rendered
fundamentally ambiguous by the introduction of Aldonas’s
email. Insofar as Doost raises a freestanding sufficiency of the
evidence challenge regarding this false statement conviction, it
is similarly without merit. Viewing the evidence presented at
trial in the light most favorable to the government, a rational
jury “could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
318–19 (1979).
6
Doost relies heavily on United States v. Jiang to argue that the court
must favorably consider his potential English deficiencies in
assessing his ability to understand and truthfully respond to
Aldonas’s question about affiliated transactions. 476 F.3d 1026 (9th
Cir. 2007). But Jiang is distinguishable from this case because the
only proof of Jiang’s verbal false statement was “Agent Spelce’s
testimony, based largely on Spelce’s notes, which were recorded
some time after the day of the interview.” Id. at 1029. The Ninth
Circuit found the evidence against Jiang was lacking overall, and it
noted merely as one consideration of many that it could not “properly
evaluate Jiang’s statements without considering the language barrier
that existed between Spelce and Jiang.” Id. at 1030. None of those
facts is present here, where the email is direct documentary evidence
of Doost’s false statement.
20
Doost also challenges counsel’s failure to introduce other
evidence, including an audit that supposedly would have
shown Doost used OPIC money to purchase equipment as he
averred, as well as testimonial evidence corroborating that
claim. Neither alleged failure prejudiced Doost.
To establish ineffective assistance with regard to failure to
admit exculpatory evidence or failure to object to inculpatory
evidence, a defendant must demonstrate “a reasonable
probability that the verdict would have been different” had
counsel made the specified evidentiary decisions. Kimmelman
v. Morrison, 477 U.S. 365, 375 (1986). “We consider each of
[Doost’s] arguments that his trial counsel was ineffective while
keeping in mind that the government’s case against him was,
in a word, overwhelming.” United States v. Udo, 795 F.3d 24,
30 (D.C. Cir. 2015); see also Strickland, 466 U.S. at 695(Courts “must consider the totality of the evidence before the
judge or jury.”). Doost fails to show he was prejudiced by any
of counsel’s supposed tactical errors with regard to the
evidence, and even “considering them in the aggregate” does
not “change[] the strength of the government’s case.” Udo, 795
F.3d at 33. Much of the evidence Doost wishes had been
introduced would have barely dented the government’s case,
and the witnesses he wishes had been called would also have
been susceptible to damaging cross-examination.
We agree with the district court that Doost cannot establish
prejudice because the evidence counsel failed to introduce was
of such limited probative value that it would not have
weakened the government’s case. See Doost, 2019 WL
1560114, at *4–6; see also Udo, 795 F.3d at 30 (“If the
defendant fails to demonstrate prejudice, we may affirm the
conviction without deciding whether counsel’s performance
was deficient.”).
* * *
21
Each of Doost’s claims of ineffective assistance falters at
either the deficient performance stage, the prejudice stage, or
both. He thus cannot show good cause for his belated
challenges to the indictment, nor does he undermine our
confidence in the verdict because of counsel’s alleged
evidentiary missteps. We affirm his conviction in full.
So ordered.