United States v. Henrik Sardariani , 754 F.3d 1118 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50418
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-01343-VAP-1
HENRIK SARDARIANI,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
January 7, 2014—Pasadena, California
Filed June 19, 2014
Before: Stephen Reinhardt and Richard R. Clifton, Circuit
Judges, and Jennifer A. Dorsey, District Judge.*
Opinion by Judge Clifton
*
The Honorable Jennifer A. Dorsey, District Judge for the District of
Nevada, sitting by designation.
2 UNITED STATES V. SARDARIANI
SUMMARY**
Criminal Law
Affirming a sentence for conspiring to commit wire fraud
and other offenses, the panel held that a notary seal can be an
“authentication feature” under 18 U.S.C. § 1028, and that the
district court correctly applied an enhancement for use of an
authentication feature under U.S.S.G. § 2B1.1(b)(11)(A)(ii).
COUNSEL
Jerald Brainin, Law Offices of Jerald Brainin, Los Angeles,
California, for Defendant-Appellant.
Ranee A. Katzenstein, Assistant United States Attorney, Los
Angeles, California, for Plaintiff-Appellee.
OPINION
CLIFTON, Circuit Judge:
Defendant Henrik Sardariani appeals his sentence of 120
months imposed as a result of a guilty plea conviction for
conspiring to commit wire fraud and other offenses. We
affirm. In doing so, we hold that a notary seal can be an
“authentication feature” under 18 U.S.C. § 1028, and that the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SARDARIANI 3
district court, in calculating the advisory guidelines range in
this case, correctly applied an enhancement for use of an
authentication feature under Sentencing Guidelines
§ 2B1.1(b)(11)(A)(ii) (formerly § 2B1.1(b)(10)(B)(ii)).1
I. Background
Beginning in 2007, Sardariani, along with several co-
conspirators, developed and executed a scheme to procure
multiple loans from various private lenders by falsely
pledging as collateral properties he did not own. The
properties included: (1) a house in Burbank, California,
previously owned by Sardariani but subsequently sold in a
foreclosure sale; (2) a house in Glendale, California,
previously owned by Sardariani but subsequently transferred
to a sham entity under his control; and (3) a house in Sherman
Oaks, California, which Sardariani induced another to
purchase and then fraudulently transferred to the sham entity.
Sardariani and his co-conspirators worked to conceal the truth
and lull the victims into a false sense that their money was
safe before absconding with the loan proceeds. The total
amount stolen in this way was $5,450,000. Sardariani
eventually pled guilty to charges of conspiring to commit
wire fraud, aggravated identity theft, and transactional money
laundering (18 U.S.C. § 371); wire fraud (18 U.S.C. § 1343);
and engaging in unlawful monetary transactions (18 U.S.C.
§ 1957).
Among the many falsified documents relating to the
fraudulent scheme were a grant deed purportedly transferring
the Sherman Oaks property from another person to
1
Sardariani presents other challenges to his sentence that are resolved
in a memorandum disposition filed together with this opinion.
4 UNITED STATES V. SARDARIANI
Sardariani’s company, SLK, and a reconveyance of an
outstanding deed of trust securing a prior lender’s loan on the
Burbank property. These two documents were recorded
bearing both forged signatures and forged notary seals. At
sentencing, the district court found that Sardariani “used the
notary seals and the notary commission numbers that he cut
and pasted” to further the commission of the crime. In
calculating the appropriate range under the advisory
Sentencing Guidelines, the court imposed an enhancement for
use of an authentication feature under U.S.S.G.
§ 2B1.1(b)(11)(A)(ii). Sardariani appeals the application of
this enhancement.
II. Discussion
A district court’s interpretation of the Sentencing
Guidelines is reviewed de novo. United States v. Rivera, 527
F.3d 891, 908 (9th Cir. 2008).2
The Sentencing Guidelines provide for a 2-level increase
“if the offense involved . . . the possession or use of any . . .
authentication feature.” § 2B1.1(b)(11)(A)(ii).3 To define
2
The Government argues that the plain error standard should apply
because Sardariani did not present his objection to the district court. We
need not resolve that argument because the outcome of our analysis does
not depend on the standard of review.
3
The full text reads:
“If the offense involved (A) the possession or use of
any (i) device-making equipment, or (ii) authentication
feature; (B) the production or trafficking of any
(i) unauthorized access device or counterfeit access
device, or (ii) authentication feature; or (C)(i) the
unauthorized transfer or use of any means of
UNITED STATES V. SARDARIANI 5
terms used in this subsection, the Guidelines refer to the
Secure Authentication Feature and Enhanced Identification
Defense Act of 2003 (“SAFE ID Act”), codified at
18 U.S.C. § 1028. See U.S.S.G. § 2B1.1 cmts. 1, 10.
“Authentication feature” is defined as a “symbol . . . or other
feature that either individually or in combination with another
feature is used by the issuing authority on an identification
document, document-making implement, or means of
identification to determine if the document is counterfeit,
altered, or otherwise falsified.” 18 U.S.C. § 1028(d)(1).4
Sardariani argues that the court’s application of an
enhancement for use of an authentication feature under
§ 2B1.1(b)(11)(A)(ii) was erroneous because the definition of
“authentication feature” is limited to symbols used on
identification documents issued by a governmental authority.
Specifically, he argues that his actions did not constitute use
identification unlawfully to produce or obtain any other
means of identification, or (ii) the possession of 5 or
more means of identification that unlawfully were
produced from, or obtained by the use of, another
means of identification, increase by 2 levels. If the
resulting offense level is less than level 12, increase to
level 12.” U.S.S.G. § 2B1.1(b)(11).
4
The full text reads:
“[T]he term ‘authentication feature’ means any
hologram, watermark, certification, symbol, code,
image, sequence of numbers or letters, or other feature
that either individually or in combination with another
feature is used by the issuing authority on an
identification document, document-making implement,
or means of identification to determine if the document
is counterfeit, altered, or otherwise falsified[.]”
18 U.S.C. § 1028(d)(1).
6 UNITED STATES V. SARDARIANI
of an authentication feature because the forged notary seals
used to further the crime were not issued by any state or
federal entity or agency, and the deeds on which the forged
seals were placed were not identification documents. This
position is not supported by the language of the statute.
First, actions by a notary public, including authentication
of a signature, are taken based upon the authority of the state.
Black’s Law Dictionary (9th ed. 2009) defines a “notary
public” as a “person authorized by a state to administer oaths,
certify documents, attest to the authenticity of signatures, and
perform official acts in commercial matters.” The state itself
is an issuing authority within the statutory definition.
“Issuing authority” is defined as “any governmental entity or
agency that is authorized to issue identification documents,
means of identification, or authentication features.” See
18 U.S.C. § 1028(d)(6).5
The fraudulent seals used here purported to represent
certification by a notary public acting under the authority and
5
The full text reads:
“[T]he term ‘issuing authority’—
(A) means any governmental entity or agency that is
authorized to issue identification documents, means of
identification, or authentication features; and
(B) includes the United States Government, a State, a
political subdivision of a State, a sponsoring entity of
an event designated by the President as a special event
of national significance, a foreign government, a
political subdivision of a foreign government, or an
international government or quasi-governmental
organization[.]” 18 U.S.C. § 1028(d)(6).
UNITED STATES V. SARDARIANI 7
as an agent of the state of California that the signatures in
question were genuine. The state relies upon notarization to
confirm the authenticity of a signature on a document to be
recorded. When a notary public acts under a state’s authority
in applying a notary seal, the notary public is properly
considered to be acting with the authority of the state, a
governmental entity authorized to issue an authentication
feature.
Second, although Sardariani may be correct that the deeds
of trust were not themselves identification documents, the
statute does not require that an authentication feature appear
on an identification document. The definition of
authentication feature includes features used “on an
identification document, document-making implement, or
means of identification.” 18 U.S.C. § 1028(d)(1) (emphasis
added). “Means of identification” is further defined in
§ 1028(d)(7) as “any name or number that may be used, alone
or in conjunction with any other information, to identify a
specific individual.”
We have previously determined that a signature is a
means of identification within the meaning of 18 U.S.C.
§ 1028(d)(7). United States v. Blixt, 548 F.3d 882, 886–88
(9th Cir. 2008). In that case, the defendant was charged with
a violation of 18 U.S.C. § 1028A(a)(1) (aggravated identity
theft) for forging the signature of her employer on checks
written for personal gain. Id. at 884–85. Defendant argued
that a signature was not a name and, therefore, not a “means
of identification” as defined in 18 U.S.C. § 1028(d)(7)
(applying to both §§ 1028 and 1028A). The district court
foreclosed this theory by instructing the jury that “a signature
is a name within the meaning of the phrase ‘Means of
Identification.’” Id. at 885. Defendant appealed, and we
8 UNITED STATES V. SARDARIANI
affirmed, holding that “forging another’s signature constitutes
the use of that person’s name and thus qualifies as a ‘means
of identification.’” Id. at 886. Applying Blixt to the facts of
this case, we conclude that the forged notary seals were used
on a means of identification.
In support of his position that authentication features are
limited to symbols found on identification documents,
Sardariani points to the conference report explaining the
purpose of the SAFE ID Act, Pub. L. No. 108-21, § 607, 117
Stat. 650, 689–91 (2003). The proposed statute was
described as “addressing the growing trade in illicit
authentication feature[s] for IDs.” H.R. Conf. Rep. 108-66,
reprinted in 2003 U.S.C.C.A.N. 683, 702. Yet the statute as
enacted was written more broadly than that language in the
conference report suggests.
“Absent a clearly expressed legislative intention to the
contrary, [the language of the statute] must ordinarily be
regarded as conclusive.” Consumer Prod. Safety Comm’n. v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). The
conference report refers to the growing trade in fake
identification documents as the motivation for proposing the
SAFE ID Act, but it does not explicitly limit the act’s
application to identification documents, and thus it does not
override the plain meaning of the statutory text. We “must
presume that a legislature says in a statute what it means and
means in a statute what it says there.” Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253–54 (1992). The statute itself
does not limit the definition of authentication features to
those used on identification documents, and we must not
either.
UNITED STATES V. SARDARIANI 9
Sardariani used forged notary seals in furtherance of the
crime: he used them to convince the county recorder’s office
that the signatures on the falsified documents were genuine.
Those forged signatures were means of identification under
18 U.S.C. § 1028(d)(7). See Blixt, 548 F.3d at 886–88. The
notary seals were, therefore, authentication features applied
to means of identification—features which the country
recorder’s office used “to determine if the document
is counterfeit, altered, or otherwise falsified.”
18 U.S.C. § 1028(d)(1). Sardariani’s use of notary seals to
authenticate forged signatures was the use of an
authentication feature as defined in § 1028(d)(1). In
calculating the advisory guidelines range in this case, the
district court correctly applied an enhancement for use of an
authentication feature under Sentencing Guidelines
§ 2B1.1(b)(11)(A)(ii) (formerly § 2B1.1(b)(10)(B)(ii)).
AFFIRMED.