Judicial Complaint, In Re:

UNITED STATES of America, Plaintiff-Appellee,
v.
MANOOCHER NOSRATI-SHAMLOO, Defendant-Appellant.
Nos. 99-10197, 99-10198.
United States Court of Appeals,
Eleventh Circuit.
July 3, 2001.
Appeals from the United States District Court for the Southern District of Florida. (No. 96-00583-CR-DLG),
Donald L. Graham, Judge.
Before EDMONDSON, WILSON and MAGILL*, Circuit Judges.
PER CURIAM:
Appellant-Defendant, MANOOCHER NOSRATI SHAMLOO, ("Defendant") appeals his conviction
and sentence by the district court for knowingly and willfully stealing, taking or abstracting mail from or out
of the United States Mail in violation of 18 U.S.C. § 1708. Because we see no abuse of discretion by the
district court in admitting evidence, nor clear error in determining the amount of loss for sentencing purposes,
Defendant's conviction and sentence are affirmed.
Background
Defendant was observed by a number of residents of the Kendall neighborhood in the southwest part
of Miami removing mail from several mailboxes in the neighborhood. The residents who had mail removed
from their mail boxes received credit cards in the mail for which they had not applied, were contacted by
credit card companies concerning accounts they had never opened and were informed by the credit bureaus
that accounts had been opened in their names for which they had not applied. At trial, three witnesses
testified that they saw Defendant take mail out of mailboxes in the neighborhood. Evidence was presented
that residents whose mail had been taken by Defendant had credit cards issued to them that they had never
requested. Evidence was also presented that Defendant had two prior convictions for possession of stolen
mail.
Defendant was found guilty by the jury. The sentencing judge determined that the amount of loss
in this case was $43,000.00, the amount of the combined credit limits on the cards obtained through the theft
*
Honorable Frank J. Magill, U.S. Circuit Judge for the Eighth Circuit, sitting by designation.
of the mail, and sentenced Defendant accordingly.
Discussion
A district court's determination regarding the amount of loss for sentencing purposes is reviewed for
clear error. See United States v. Daniels, 148 F.3d 1260, 1261 (11th Cir.1998).
The chief issue in this appeal is whether the sentencing court erred in fixing the amount of intended
loss from the theft of credit card applications out of the United States Mail (in violation of 18 U.S.C. § 1708)
at $43,000.00—the total amount of the credit limits on the cards applied for by Defendant—when the actual
charges made against the cards were less, the evidence was circumstantial and unclear about whether
defendant knew the actual credit limits on the cards, and when no evidence shows that Defendant's intent was
something other than to make use of the full line of credit. The answer is "No."1
In United States v. Dominguez, 109 F.3d 675 (11th Cir.1997), we left open the question of whether
the amount of loss attributable to fraudulently obtained credit cards could be calculated as the full amount
of the credit line when there is no direct evidence that Defendant knew the amount of the credit limits. Id.at 677 n. 5. Today, we decide that once a defendant has gained access to a certain credit line by fraudulently
applying for credit cards, a district court does not err in determining the amount of the intended loss as the
total line of credit to which Defendant could have access, especially when Defendant presents no evidence
that he did not intend to utilize all of the credit available on the cards. See United States v. Sowels, 998 F.2d
249, 250 (5th Cir.1993) (where court found the total amount of the credit card limits was a plausible measure
of intended loss when there was no specific finding that defendant knew what the limits were).
In this case, Defendant objected to the Pre-Sentence Investigation Report's determination that the
amount of loss was $43,000.00; and therefore the government had the burden at sentencing of proving the
loss for sentencing. See United States v. Bernardine, 73 F.3d 1078, 1080 (11th Cir.1996). If the intended
loss due to the offense is greater than the loss actually caused, the court may use the amount of the intended
loss for sentencing purposes. See U.S. Sentencing Guidelines Manuel § 2F1.1, cmt. n. 7 (1997) ("[I]f an
intended loss that the defendant was attempting to inflict can be determined, this figure will be used if it is
greater than the actual loss."); U.S. Sentencing Guidelines Manuel § 2B1.1, cmt. n. 2 (1997) ("Where the
1
The district court's rulings on admission of evidence regarding credit cards transactions, and
Defendant's prior convictions for possession of stolen mail are reviewed for abuse of discretion and
affirmed. The evidence was relevant to establishing Defendant's motive and intent for removing mail
from several mailboxes in the neighborhood.
offense involved making a fraudulent loan or credit card application, or other unlawful conduct involving a
loan or credit card, the loss is to be determined under the principles set forth in the Commentary to § 2F1.1
(Fraud and Deceit)."). A defendant's intent is often difficult to prove and often must be inferred from
circumstantial evidence. See United States v. Ethridge, 948 F.2d 1215, 1217 (11th Cir.1991) (recognizing
that intent must often be proved by circumstantial evidence allowing the factfinder to infer intent); Hill v.
Kemp, 833 F.2d 927, 930 (11th Cir.1987) (approving jury instruction that "[i]ntent may be shown in many
ways ... It may be inferred from the proven circumstances or by acts and conduct ...").
In this case, the government presented evidence at the sentencing hearing that Defendant had stolen
mail with the intent of applying for and using credit cards and that the credit cards for which he applied had
an aggregate credit limit of $43,000.00.2 Defendant presented no evidence that tended to show that he did
not intend to use all of the credit available on the cards. The evidence presented allowed the district judge
to determine for sentencing purposes that Defendant intended to utilize all of the credit available on the cards
thus intending a loss of $43,000.00. Cf. United States v. Oates, 122 F.3d 222, 226 n. 5 (5th Cir.1997) (saying
that one who fraudulently endorses a financial instrument intends to gain access to the funds it represents and
that it is the "access to funds [that] is dispositive" in determining the amount of loss). We conclude that the
district court did not clearly err in fixing the amount of loss at $43,000.00.
Conclusion
The district court did not clearly err in determining the amount of intended loss by Defendant was
$43,000.00.
AFFIRMED.
2
The government presented other evidence that might strengthen the argument that Defendant
intended to utilize all of the credit available on the cards. Defendant had three previous convictions for
similar offenses and therefore has a sophisticated knowledge of the credit card industry, had made a
number of charges on some of the cards and had requested a PIN for one of the cards. Bernardine, 73
F.3d at 1080-81 (the sentencing court can consider relevant evidence without regard to its admissibility
under the rules of evidence as long as the information is sufficiently reliable to support its accuracy).