United States v. Shah, Yogesh

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1306
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
Y OGESH S HAH,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-CR-211—Lynn S. Adelman, Judge.
S UBMITTED F EBRUARY 11, 2009—D ECIDED M ARCH 18, 2009
Before P OSNER, W ILLIAMS, and T INDER, Circuit Judges.
P OSNER, Circuit Judge. The defendant was convicted in
a bench trial of multiple counts of fraud, and received
concurrent sentences of 144 months in prison. Most of the
arguments that he makes on appeal are frivolous and
require no discussion. One, however, has merit. It con-
cerns his conviction under 18 U.S.C. § 2314, which, so far
as bears on this case, punishes any person who
transports, transmits, or transfers in interstate or
foreign commerce any goods, wares, merchandise,
2 No. 07-1306
securities or money, of the value of $5,000 or more,
knowing the same to have been stolen, converted or
taken by fraud; or
[who], having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money
or property by means of false or fraudulent pretenses,
representations, or promises, transports or causes to
be transported, or induces any person or persons to
travel in, or to be transported in interstate or foreign
commerce in the execution or concealment of a
scheme or artifice to defraud that person or those
persons of money or property having a value of
$5,000 or more.
The indictment charged the defendant with having
dispatched a courier, with cash, to an investment advisor
who recruited investors in the defendant’s fraudulent
enterprise. But it is apparent from the second paragraph
of section 2314 that the person transported must be a
victim of a scheme to defraud him of at least $5,000. See
also United States v. Thomas, 377 F.3d 232 (2d Cir. 2004).
Even if (though the evidence suggests the opposite) the
courier was an unwitting accomplice of the defendant
intended to be the “fall guy,” there is no evidence that the
defendant intended to defraud him of $5,000 or more, or
indeed of any amount of money. On the contrary, the
defendant paid the courier an annual salary of $26,000
to assist in the fraud. The government’s argument that
the courier was the victims’ agent, as in the Thomas case,
see id. at 236-39, is preposterous. By the same logic, the
defendant was the victims’ agent too.
No. 07-1306 3
The government intimates in its brief that the defendant
also violated the first paragraph of section 2314. That
was neither charged in the indictment nor found by the
trial judge.
So the defendant is entitled to an acquittal on the
section 2314 count, and hence to a cancellation of the
special assessment of $100 imposed for his conviction on
that count. United States v. Introcaso, 506 F.3d 260, 272-73
(3d Cir. 2007); United States v. Swan, 250 F.3d 495, 499-
501 (7th Cir. 2001). And although he received concurrent
sentences (apart from the assessment), he is entitled to a
shot at persuading the judge to give him a lighter
sentence in view of the acquittal that we are directing.
Moreover, in deciding on his original sentence, the
judge treated the guidelines as mandatory because the
sentencing hearing occurred in 2002, before they were
made advisory by United States v. Booker, 543 U.S. 220(2005). The defendant appealed, but then on advice of his
appellate counsel voluntarily dismissed the appeal. He
spent the next five years trying to persuade the judge that
his appellate counsel, in recommending dismissal of the
appeal, had rendered ineffective assistance of counsel.
The judge eventually agreed, and re-entered the original
judgment in order to enable the defendant to file this
appeal. The government agrees that the defendant is
entitled to a limited remand in order to enable the judge
to decide whether to give the defendant a lighter sen-
tence under the advisory-guideline regime created by
the Booker decision. United States v. Paladino, 401 F.3d 471(7th Cir. 2005). But since the defendant must be
4 No. 07-1306
resentenced because of the partial acquittal that we are
ordering, there is no occasion for a limited remand. In
deciding on the defendant’s new sentence, the judge
will perforce be applying the standard of the Booker
decision.
And so the judgment is affirmed in part, reversed in
part, and remanded with instructions.
3-18-09