United States v. Onyiego

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-41250
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

YOPHES ONYIEGO, also known as Yophes Onyanuo,
also known as Eric Ombui; ISAAC KIPKURUI
BIEGON; MAHMOOD KHAN LODHI, also known as Mike
Lodhi,

Defendants-Appellants.
_________________________________________________________________

Appeals from the United States District Court
for the Eastern District of Texas
_________________________________________________________________

March 15, 2002

Before GARWOOD, JOLLY and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Yophes Onyiego, Isaac Biegon, and Mahmood Lodhi were among six

people convicted for carrying out a conspiracy to traffic in stolen

airline tickets. Lodhi was allegedly the mastermind behind the

conspiracy. Biegon and Onyiego allegedly served as ticket brokers

-- selling and using the false tickets. Each defendant challenges

the sufficiency of the evidence supporting his conviction.

Specifically, Biegon challenges the government’s use of the price

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written and filled in on the blank airline tickets by a co-

conspirator as evidence of the “face value” of those tickets.

Biegon contends that this value is false -- insofar as it was

“made-up” by his co-conspirator -- and therefore cannot be used to

establish the “$5000-or-more” jurisdictional element of the crime

of interstate transportation of stolen goods. We refuse to read

any sort of “truth” requirement into the jurisdictional element of

this criminal statute. We hold that the face value of a stolen

good is the value affixed to the face of that good. We therefore

affirm the conviction of Biegon. We also affirm the sentences of

his co-defendants, Onyiego and Lodhi. Finally, we reverse the

restitution award because the award included unrecoverable

consequential damages.

On May 9, 1997, Lodhi, along with three teenage boys,

burglarized Dimension Travel. On the day of the burglary, Lodhi

rounded up the three teenagers -- one of whom was his son -- to

help him accomplish the crime. Lodhi told the teenagers that he

had already checked out Dimension Travel. He instructed them to

look for blank airline tickets once inside the travel agency. On

the night of the burglary, Lodhi drove to Dimension Travel, dropped

off the teenagers, and waited while the crime was committed. The

teenagers broke through a glass window in the front of the agency

and proceeded to steal three thousand blank airline tickets. The

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teenagers then deposited the stolen tickets in the back of Lodhi’s

Cadillac.

Before the burglary, Lodhi was sought out by Kamran Burney,

who hoped to secure some blank airline tickets. Burney had the

computer software necessary to forge blank airline tickets. In

particular, he could use his computer to fill in the price,

destination, airline, and date of travel on the blank airline

tickets. Lodhi told Burney that he could get him some blank

tickets but that a down payment was required. Burney gave Lodhi a

$2000 down payment. Lodhi promised delivery of the tickets within

a few days. Before receiving the tickets, Burney recruited various

people to broker the stolen tickets, including Onyiego and Biegon.

He instructed the brokers to call him with customer information so

that he could then fill in the blank tickets. He further

instructed the brokers that if anyone should inquire about the

source of the tickets they should lie and claim they got the

tickets through 1-800-flyer. Lodhi delivered the stolen tickets to

Burney, who then began trafficking the tickets through Biegon,

Onyiego and others.

Biegon ran a travel agency, Zooken Travel. Burney sold Biegon

10 to 12 stolen tickets for between $200 and $300 per ticket.

Biegon later sold these stolen tickets for upwards of $1400.

Burney delivered the tickets to Biegon at his travel agency and in

a parking lot.

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Onyiego bought a number of tickets from Burney and then resold

the tickets. On one occasion, Onyiego told a customer not to

confirm the tickets because the ticket was “no good.” On another

occasion, Onyiego advised a customer to lie to the FBI and say he

received the tickets, not from Onyiego, but from Eric Ombui.

Onyiego made at least one of his ticket sales in a parking lot in

Plano, Texas.

The stolen ticket sales imposed a significant cost on the

airlines and Dimension Travel. By the trial date, the airlines had

charged Dimension Travel $598,506.60 for the passengers flying on

the stolen tickets. This value reflected the sum of the amount

filled in by Burney on each stolen ticket.

Upon the referral of the Plano Police Department, the FBI

investigated the crime. On April 12, 2000, a federal grand jury

returned a two-count indictment against six defendants, including

Lodhi, Biegon, and Onyiego. Count One of the indictment charged

each defendant with conspiracy to transport stolen goods in

interstate commerce. Count Two charged each defendant with the

substantive offense underlying the conspiracy charge.

A jury found Onyiego, Biegon, and Lodhi guilty of the

interstate transportation of stolen goods and conspiracy to

transport stolen goods in interstate commerce. Onyiego was

sentenced to 24 months imprisonment and $6,802.80 in restitution.

Biegon was sentenced to 9 months imprisonment and $8,275.18 in

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restitution. Lodhi was sentenced to 115 months imprisonment and

$622,053.84 in restitution.

Each defendant now appeals.1

We first address Biegon’s challenge to the sufficiency of the

evidence to support his conviction for the interstate

transportation of stolen goods. We then address the defendants’

challenges to the sufficiency of the evidence underlying their

conspiracy convictions. Finally, we consider the sentencing and

restitution issues raised by each defendant.

When reviewing the sufficiency of the evidence, the question

we ask is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)(citations

omitted)(emphasis in original).

To establish the offense of the interstate transportation of

stolen property under 18 U.S.C. § 2314, the government must prove:

(1) the interstate transportation of (2) goods, merchandise, wares,

money, or securities valued at $5,000 or more and (3) with

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Each defendant moved for a judgment of acquittal at the close
of the government’s case and the close of evidence. We review the
denial of these motions de novo, applying the same standard as the
district court. United States v. Ferguson, 211 F.3d 878, 882 (5th
Cir.)(citations omitted), cert. denied, 531 U.S. 909 (2000).

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knowledge that such items have been stolen, converted, or taken by

fraud. See Dowling v. United States, 473 U.S. 207, 214 (1985).

Biegon’s sufficiency of the evidence challenge focuses solely

on the jurisdictional element of the crime. This element requires

that stolen goods transported in interstate commerce have a value

of more than $5000. See United States v. Perry, 638 F.2d 862, 865

(5th Cir. 1992)(“Proof of the value of the property at the time it

was stolen or at some time during its receipt, transportation or

concealment is essential to conviction of the crime against the

United States.”)(quoting United States v. Nall, 437 F.2d 1177, 1187

(5th Cir. 1977)). As we noted in Nall, “While we agree that the

$5,000.00 limitation was not designed to protect those who

transport stolen property of a lesser value, its effect is to leave

the punishment of such persons to the several states and to make

the limitation an essential part of the federal crime.” Id. at

1187.

The government can prove the value of a stolen good by

reference to that good’s “face, par, or market value, whichever is

the greatest.” 18 U.S.C. § 2311. Here, Biegon argues that the

government cannot rely on the “face” value of the tickets -- i.e.,

the value written on the tickets -- to prove the jurisdictional

element because this value was simply “made up” and filled in by

Burney. Lacking proof of the “face” value, the government, Biegon

asserts, has to show that the market or par value of the stolen

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tickets was enough to satisfy the jurisdictional element. The

tickets in this case were not securities and hence have no par

value. Furthermore, Biegon contends that the government only

proved that the market value of the stolen tickets was equal to

$3,256 -- an amount insufficient to satisfy the “$5000-or-more”

jurisdictional element. Consequently, Biegon argues that the

evidence was insufficient to support his conviction under 18 U.S.C.

§ 2314.

In contrast, the government argues that it could use the

values Burney filled in on the blank tickets to prove the

jurisdictional element of the crime. The government points out

that these figures -- although concocted by a co-conspirator --

reflected the price the airlines eventually charged Dimension

Travel for the passengers flying on the stolen tickets.

What constitutes the face value of a previously stolen blank

airline ticket is an issue of first impression in this Circuit.

Nevertheless, we do not write on an entirely clean slate. We have

previously held that the value requirement for a blank money order

can be met “by the face value of, or the amount received for,

filled in blank money orders, or the value of the blanks in a

thieves’ market for blank money orders.” See United States v.

Wright, 661 F.2d 60, 61 (5th Cir. 1981)(emphasis added)(citing

United States v. Bullock, 451 F.2d 884 (5th Cir. 1971)). We have

also held that the “face” value of a fraudulently secured

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promissory note does not depend on the amount of money eventually

obtained in a litigation settlement on that note. Instead, the

face value is the figure written on, and the credit given for, the

wrongfully obtained note. See United States v. Robinson, 553 F.2d

429, 431 (5th Cir. 1977), cert. denied, 434 U.S. 1016 (1978).

With these cases in mind, we turn to interpret the statute at

issue. As noted above, the statute allows the government to define

value in any one of three ways: par, market, or face. 18 U.S.C. §

2311. The plain meaning of “face value” is “the value indicated

on the face of an instrument.” MERRIAM-WEBSTER’S DICTIONARY 812 (3d

ed. 1993). There is nothing inherent in the definition of “face

value” that insists on this value being -- in any sense -- correct.

See United States v. Laughlin, 804 F.2d 1336, 1338 (5th Cir. 1986)

(“Congress determined that value for jurisdictional purposes would

not be established by reference to a ‘particular will’ nor by

reference to some intrinsic measure of worth.”). Nor does the

plain meaning of the term mandate that the face value equal the

market or par values of the good. In fact, because Congress

included three different ways to define “value,” a sensible reading

of the statute suggests that in many cases a stolen good’s face,

market, and par values would all be different. Under any other

reading, the statute would include surplusage. See Platt v. Union

Pacific R. Co., 99 U.S. 48, 58 (1878)(“Congress is not to be

presumed to have used words for no purpose.”).

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We see no need to depart from the plain meaning of the statute

in this case. The “face” value of a stolen good is the value

affixed to the face of that good. In so holding, we follow and

make explicit the holdings of Robinson and Bullock. We do not

decide today whether the face value of a stolen good includes any

figure -- no matter how outlandish -- written on the face of a

good. In some cases, the value of a good -- for example, stolen

airline tickets that remain blank -- may best be determined by

reference to their market value or their value in the thieves’

market. The figure written on the face of each stolen ticket in

this case, however, was (1) the amount of money eventually charged

to Dimension Travel by the airlines and (2) the amount the tickets

would have been redeemable for had the tickets not been used. The

government provided ample evidence that the tickets sold by Biegon

had a combined face value of $8,018. Accordingly, the evidence --

when viewed in the light most favorable to the verdict -- is

sufficient to support Biegon’s conviction for the interstate

transportation of stolen property under 18 U.S.C. § 2314.

We now turn to the defendants’ challenges to the sufficiency

of the evidence underlying their conspiracy convictions.

To establish a conspiracy to transport and sell stolen goods

in interstate commerce under 18 U.S.C. § 371, the government is

required to prove: (1) an agreement between two or more persons (2)

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to commit the underlying crimes and (3) an overt act committed by

one of the conspirators in furtherance of the agreement. United

States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999)(citing United

States v. Burton, 126 F.3d 666, 670 (5th Cir. 1997)). The

government must prove that “the defendant[s] knew of the conspiracy

and . . . voluntarily became a part of it.” United States v.

Mackay, 33 F.3d 489, 493 (5th Cir.1994) (internal quotation marks

and citation omitted). The conspiracy need not be proven by direct

evidence. See Burton, 126 F.3d at 670 (citing United States v.

Schmick, 904 F.2d 936, 941 (5th Cir. 1990)). Circumstantial

evidence, such as a concert of action, may suffice to prove

agreement, but “each link in the inferential chain must be clearly

proven.” See United States v. Galvan, 693 F.2d 417, 419 (5th Cir.

1982)(citation omitted).

After reviewing the record in this case, we find that the

evidence is more than sufficient to support the conspiracy

convictions.

The evidence against Lodhi was substantial. It included (1)

testimony that he enlisted the help of three teenage boys in the

burglary of Dimension Travel; (2) testimony that he engaged in the

burglary of the travel agency after Burney asked him if he could

get some blank airline tickets; and (3) testimony that he delivered

the tickets at night in various parking lots around town.

The evidence against Onyiego included (1) testimony that he

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told one of his customers that the tickets were “no good;” (2)

testimony that he told one of his customers to lie about the source

of the tickets if questioned by the FBI; and (3) testimony that

Burney told him to tell his customers that they received the

tickets through the 1-800-flyer number.

The evidence against Biegon included (1) testimony that he

purchased the tickets from Burney for $200 or $300 and later sold

those same tickets for upwards of $1400; (2) testimony that he

received, on one occasion, delivery of the blank tickets in the

parking lot of Kroger; and (3) testimony that he knew that he

should instruct customers to stick with the “1-800-flyer” story if

they happened to be questioned about the validity of the tickets.

For the foregoing reasons, the evidence is sufficient to

support each defendant’s conspiracy conviction.

Finally, we address the sentencing and restitution issues

raised by each defendant.

Biegon challenges the sentence imposed by the district court.

He argues that the district court incorrectly used -- when

computing the “loss” from the theft for sentencing purposes -- the

amount written on the face of the blank tickets. We review the

trial court's application of the sentencing guidelines de novo and

its findings of fact under the clearly erroneous standard. See

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United States v. Salter, 241 F.3d 392, 394 (5th Cir. 2001).

As noted above, Biegon was convicted for interstate

transportation of stolen goods and conspiracy to transport stolen

goods. In cases involving theft or possession of stolen property

“Section 2B1.1(b)(1) increases the base offense level on a

graduated scale according to the amount of the victims’ loss."

United States v. Sowels, 998 F.2d 249, 250 (5th Cir. 1993), cert.

denied, 510 U.S. 1121 (1994). “Loss” under this sentencing

guideline provision means “the value of the property taken,

damaged, or destroyed.” Application Note 2 to § 2B1.1. Typically,

this value is the “fair market value of the particular property at

issue.” Id.

Biegon argues that the value written on the blank tickets does

not reflect the “fair market value” of the tickets. Instead,

Biegon contends that the fair market value is better estimated by

the amount he actually received for the ill-gotten tickets. We

find this argument unpersuasive.

The black market value of the blank airline tickets -- i.e.,

Biegon’s proceeds from the sale of the tickets -- is not the same

as the fair market value of those tickets. One assumes that the

black market price of a stolen good will reflect a discount from

the fair market price (i.e., value) of that good. Few, if any,

persons knowingly pay the full market price for a stolen good.

Accordingly, the district court had before it little evidence

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of the fair market value of the blank airline tickets. In this

sort of case, the application notes to the sentencing guidelines

allow the sentencing court to use other reasonable means to

ascertain the level of loss to the victim. Application Note 2 to

§ 2B1.1 (“Where the market value is difficult to ascertain or

inadequate to measure harm to the victim, the court may measure

loss in some other way.”).

Here, the district court measured the loss as the amount

billed by the airlines to the victim. Calculating losses in this

fashion was entirely appropriate. Accordingly, we affirm Biegon’s

sentence.

The district court ordered that Lodhi pay $622,053.84 in

restitution. This amount of restitution included $23,063.98 in

legal fees incurred when the victim was forced to defend actions

instituted by the airlines seeking to collect on the stolen

tickets.

Lodhi argues that these legal fees are not recoverable because

they were not directly and proximately incurred as a result of the

crime. The legality of the district court's order of restitution

is reviewed de novo. United States v. Hughey, 147 F.3d 423, 436

(5th Cir.), cert. denied, 525 U.S. 1030 (1998). “Once we have

determined that an award of restitution is permitted by the

appropriate law, we review the propriety of a particular award for

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an abuse of discretion.” Id. (internal citation omitted).

18 U.S.C. § 3663A provides for the mandatory award of

restitution in cases such as this one. This section limits the

restitution award to either (1) the value of the property on the

date of the damage, loss, or destruction or (2) the value of the

property on the date of the sentencing less the value (as of the

date the property is returned) of any part of the property that is

returned. 18 U.S.C. § 3663A(a)(3)(b)(1)(B). This language is the

same as the language in the section of the code that deals with the

discretionary (as opposed to a mandatory) award of restitution.

See 18 U.S.C. § 3663(b). We have interpreted the language of

Section 3663(b) to preclude the award of consequential damages.

See United States v. Mitchell, 876 F.2d 1178, 1184 (5th Cir. 1989).

The losses here are akin to losses incurred by a victim

attempting to recover stolen property. We have specifically held

that such “recovery” losses cannot be included in a restitution

award under Section 3663(b)(1). Id. at 1184 (“There is no

provision [in the restitution Act] authorizing restitution for lost

income, cost of restoring property to its pre-theft condition, or

cost of employing counsel to recover from an insurance

company.”)(emphasis added); see also United States v. Schinnell, 80

F.3d 1064, 1070-71 (5th Cir. 1996). Accordingly, we reverse the

district court’s order granting restitution for the legal fees the

victim incurred defending the collection actions by the airlines.

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In all other aspects, the restitution order is affirmed.

III

We have looked carefully at the record in this case and find

unpersuasive the remaining arguments raised by the defendants. As

a consequence, we affirm the convictions and sentences of Onyiego,

Lodhi, and Biegon. In addition, we reverse and remand the

restitution assigned to Lodhi insofar as it included the victim’s

legal fees.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED