NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS
NOV 26 2014
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-50532
Plaintiff - Appellee,
D.C. No. 2:12-cr-00348-RGK-1
v.
AHMED SARCHIL KAZZAZ MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted July 8, 2014
Pasadena, California
Before: BERZON and CLIFTON, Circuit Judges, and
ROSENTHAL, District Judge.**
Ahmed Sarchil Kazzaz pleaded guilty to an indictment charging him with
one count of conspiracy to defraud and to commit offenses against the United
States, six counts of paying kickbacks to a government contractor’s employees to
obtain subcontracts and renewals, one count of wire fraud, and four counts of mail
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Hon. Lee H. Rosenthal, of the United States District Court for the
Southern District of Texas, sitting by designation.
fraud. In this appeal, Kazzaz asserts that the District Court erred in finding that his
plea satisfied the Federal Rule of Criminal Procedure 11(b)(3) requirement for a
factual basis.
The government urges that Kazzaz’s appellate waiver forecloses the
arguments he makes on appeal. But neither an appellate waiver nor a guilty plea
precludes an appeal if the plea is not taken in accordance with Federal Rule of
Criminal Procedure 11. United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007)
(citing United States v. Portillo-Cano, 192 F.3d 1246, 1252 (9th Cir. 1999)); see
also United States v. Brizan, 709 F.3d 864, 866 (9th Cir. 2013).
We review unpreserved Rule 11 challenges for plain error. United States v.
Escamilla-Rojas, 640 F.3d 1055, 1061 (9th Cir. 2011) (citing United States v.
Santiago, 466 F.3d 801, 803 (9th Cir. 2006)). Our review satisfies us that the
record provided a sufficient factual basis for the plea, and we affirm. We need not,
and do not, address whether the challenges Kazzaz raises are proper under Rule 11
after a guilty plea and appeal waiver.
A. Extraterritoriality
Kazzaz argues that the presumption against the extraterritorial application of
criminal statutes applies under Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247
(2010), and that the record, including the facts that he stipulated to in his plea
agreement, do not show the required domestic nexus.
Because the stipulated facts show a sufficient domestic nexus with the
United States for the mail-fraud and wire-fraud counts, we need not address
whether these statutes have extraterritorial application. The “elements of
mail fraud under 18 U.S.C. § 1341 are: (1) the existence of a scheme to
defraud, and (2) using or causing the use of the mails to further the scheme.”
United States v. Serang, 156 F.3d 910, 914 (9th Cir. 1998). The mail-fraud
statute “forbid[s] and mak[es] criminal any use of the mails for the purpose
of executing [a] scheme to defraud or to obtain money by false
representations.” Parr v. United States, 363 U.S. 370, 389 (1960) (internal
quotation marks omitted, last alteration in original). The elements of wire
fraud are similar: “(1) a scheme to defraud, (2) use of the wires in
furtherance of the scheme and (3) a specific intent to deceive or defraud.”
United States v. Garlick, 240 F.3d 789, 792 (9th Cir. 2001). As with the
mail-fraud statute, the focus “is upon the misuse of the instrumentality of
communication.” Id. (internal quotation marks omitted). Kazzaz stipulated
to using the mails to send checks to Alabama and using electronic
communications to transmit a payment to a bank in Alabama. These facts
provide a sufficient domestic nexus for the mail- and wire-fraud claims.
As to the Anti-Kickback Act and conspiracy-to-defraud counts, “in United
States v. Bowman, 260 U.S. 94, 98 . . . (1922), the Supreme Court held that the
territorial presumption does not govern the interpretation of criminal statutes that,
by their nature, implicate the legitimate interests of the United States abroad.”
United States v. Corey, 232 F.3d 1166, 1170 (9th Cir. 2000); see also United States
v. Felix-Gutierrez, 940 F.2d 1200, 1204 (9th Cir. 1991). The Anti-Kickback Act
and 18 U.S.C. § 371 by their nature implicate the legitimate interests of the United
States. See United States v. Cotten, 471 F.2d 744, 750 (9th Cir. 1973).
Kazzaz’s Rule 11(b)(3) argument based on the presumption against the
extraterritorial application of the criminal statutes fails.
B. Fraud
Kazzaz also argues that the stipulated facts do not show “traditional” money
or property fraud. The fraud statutes cover “individuals who retain or
misappropriate the money or property of others, regardless of how they acquired
it.” United States v. Jones, 472 F.3d 1136, 1139 (9th Cir. 2007). Kazzaz argues
that the stipulated facts do not show that the kickback payments caused a loss to
the United States, because he made the payments from money he received under
the subcontracts or from his own funds. He argues that the United States paid the
stated contract price and was not deceived into paying more because of the
kickbacks.
Kazzaz, however, pleaded guilty to the allegations in the indictment,
including the allegations charging him with defrauding the United States because
the kickbacks “inflat[ed] the cost of these subcontracts and funding increases,”
causing losses. The record shows almost $1 million paid as kickbacks, corrupting
the contracting process, including the contract prices, and causing loss to the
United States.
Had Kazzaz continued to plead not guilty and gone to trial, he could have
argued that the facts support competing “innocent” inferences that a jury might
have credited. But he pleaded guilty, stipulated to the factual basis for his fraud
and conspiracy-to-defraud convictions, and stated that the stipulated facts satisfied
the elements of the offenses. The record and stipulation provide a sufficient
factual basis for those convictions. Contrary to Kazzaz’s argument, the same facts
may support both an honest-services fraud and traditional-fraud conviction. United
States v. Avery, 719 F.3d 1080, 1085 n.3 (9th Cir. 2013) (citing United States v.
Pelisamen, 641 F.3d 399, 406 (9th Cir. 2011)). Rule 11(b)(3) is satisfied.
The District Court met its Rule 11 obligations and properly accepted
Kazzaz’s guilty plea. Even assuming, without deciding, that Kazzaz properly
raised the Rule 11 challenges, they provide no basis to vacate the convictions. We
AFFIRM.