United States v. Haber

F I L E D
United States Court of Appeals
Tenth Circuit

MAY 24 2001
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4088

AVRAHAM BEN-ZION HABER,

Defendant-Appellant,

Appeal from the United States District Court
for the District of Utah
(D.C. No. 95-CR-200-S)

Submitted On The Briefs:

Michael G. Katz, Federal Public Defender, and Jenine Jensen, Assistant Federal
Public Defender, Denver, Colorado, for Defendant-Appellant.

Paul M. Warner, United States Attorney, Scott J. Thorley, Assistant United States
Attorney, and Mark Y. Hirata, Assistant United States Attorney, Salt Lake City,
Utah, for Plaintiff-Appellee.

Before SEYMOUR, BALDOCK and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.
 Following a jury trial, Avraham Ben-Zion Haber was convicted of mail

fraud in violation of 18 U.S.C. § 1341 and wire fraud in violation of 18 U.S.C. §

1343. The district court sentenced him to forty-six months in prison, followed by

three years of supervised release. Mr. Haber raises five arguments on appeal,

claiming the district court committed reversible error by (1) denying his motion

for acquittal on fraud claims related to disability insurance; (2) failing to give a

jury instruction on unanimity; (3) failing to have the court reporter transcribe

certain bench conferences; (4) imposing a sentence enhancement for abusing a

position of trust; and (5) increasing his base offense level based on its finding

that the “intended loss” from his offenses exceeded $800,000. We affirm the

conviction and sentence. 1

I

Mr. Haber, a Utah resident, was born and raised in Israel. In 1992, he told

Eugenia and Jafar Chafi, friends who also lived in Utah, that there was a great

deal of building construction going on in Israel. He explained to them that he was

the exclusive distributor for several window and door manufacturers and that he

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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had many important contacts with Israeli architects, developers and builders of

upscale high-rises and condominiums. Mr. Haber proposed that the Chafis invest

in an export business that he would form to sell windows and doors in Israel.

They agreed, and signed a contract with Mr. Haber to form a company called

Visions International. Mr. Haber was to own a seventy percent interest, and the

Chafis would invest $45,000 in return for a thirty percent interest.

In the agreement, Mr. Haber promised to incorporate Visions International

in Utah and register it in Israel. He represented to the Chafis that their money

would be used to open a corporate bank account in their name in Israel, which he

claimed required a minimum opening deposit of $12,000, and to retain Israeli

legal counsel and an accountant. Mr. Haber agreed to be responsible for all

Israeli business operations and promised to secure orders for the windows and

doors from his existing Israeli contacts, to market the products and to seek new

business contracts. Mr. Haber represented to the Chafis that the Visions

International products had already been tested and approved for sale by the Israeli

government.

Over the next few months, Mr. Haber told the Chafis that Visions

International had supplied the windows and doors for a major building project in

Israel, was shipping thousands of doors and windows to Israel for installation,

was making substantial profits, and had $1 million in its bank account. He also

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told them he planned to open a window and door assembly factory in Israel, and

he represented that he was familiar with the incentives and subsidies available

from the Israeli government to assist in securing the factory site. From August

1992 until October 1993, the Chafis gave Mr. Haber a total of $137,000. He told

them this money would assist in operating the business and securing a factory

site, and he increased their ownership in Visions International to fifty percent in

return.

The Chafis began to question Mr. Haber in early 1993 about how their

money was being spent and when they would begin receiving returns on their

investment. He told them the profits had to remain in an Israeli bank account in

order to pay taxes and to obtain Israeli assistance in building the factory. In the

spring of 1993, the Chafis traveled to Israel to tour the factory site. Mr. Haber

continually put off meeting with them and claimed to be unable to give them

directions to the factory site. Eventually the Chafis returned home.

Jeanne Corwin owned a marketing business in North Carolina and traveled

frequently to Israel. Mr. Haber became acquainted with her while in Israel in late

1992. He told her that he owned Visions International in partnership with an

individual investor who owned ten percent and a major window manufacturer that

owned two percent. He also represented to her that he was the exclusive

distributor in Israel for several window and door manufacturers and that he was

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building a window and door factory. At one point, Mr. Haber took Ms. Corwin to

an industrial park, telling her it was to be the factory site. Ms. Corwin gave Mr.

Haber $125,000, and in exchange he promised her a twenty percent ownership

interest in Visions International. During 1992 and 1993, Haber told both the

Chafis and Ms. Corwin that Visions International had ongoing sales of windows

and doors in Israel and that construction on the factory was proceeding well.

Ms. Corwin later gave Mr. Haber an additional $44,950 to purchase door

manufacturing machines.

Despite these many representations, in truth Mr. Haber simply converted

the Chafis’ and Ms. Corwin’s money for his own personal use. He deposited their

funds into his personal bank accounts and used the money to pay living expenses

and to repay a personal loan from his father-in-law. He never incorporated

Visions International, opened a bank account, nor obtained legal counsel or an

accountant for its purported business. Neither Mr. Haber nor Visions

International was an exclusive distributor for the claimed window and door

manufacturers, and no window manufacturer had invested in Visions

International. The Israeli government had not approved any windows or doors

from Mr. Haber or Visions International for sale. In fact, other than some minor

sample shipments to Israel for testing purposes, neither Mr. Haber nor the sham

Visions International ever shipped windows or doors to Israel, sold any product,

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or entered into any contract in Israel or elsewhere. Mr. Haber never purchased

property or began construction of a factory.

Mr. Haber did, however, apply for disability insurance to protect his

income from the nonexistent company. In his application to the Equitable Life

Assurance Society, he claimed to be a self-employed owner of a business that sold

large quantities of windows and doors to local and foreign governments. To meet

Equitable Life’s minimum income threshold, Mr. Haber stated that he had

a current income of $121,000 and that his prior year’s income was $120,000. In

fact, Mr. Haber had no source of income other than the monies he received from

the Visions International investors. The day after his disability insurance policy

went into effect, Mr. Haber injured his elbow and filed a disability claim. 2
He

claimed his prior income level entitled him to $5,000 a month in disability

benefits. Equitable Life paid Mr. Haber four monthly payments of $5,000 but

later challenged his represented income. Mr. Haber provided the insurer with a

letter from his bank stating that his 1992 deposits totaled $129,750 and his 1993

deposits totaled $145,750. Despite this evidence, Equitable Life eventually

determined Mr. Haber had falsely represented that his income met the policy

requirements and it rescinded the policy.

2
Despite the fortuitous timing, the fact that Mr. Haber suffered a serious injury is
not in dispute.

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 II

A. Equitable Life Mail Fraud Counts

Mr. Haber was found guilty of mail fraud based upon his

misrepresentations to Equitable Life in connection with his disability insurance

policy. He argues the evidence was insufficient to show his dealings with

Equitable Life were part of a common scheme to defraud the Visions International

investors, and he contends the district court erred in denying his motion for a

judgment of acquittal based on this argument. Mr. Haber had previously moved

unsuccessfully to sever these counts from the indictment.

There are three components to a violation of the mail fraud statute: “(1) the

devising of a scheme or artifice either (a) to defraud or (b) for obtaining money

by means of false or fraudulent pretenses, representations, or promises, (2) the

specific intent to defraud, and (3) the use of the United States mails to execute the

scheme.” United States v. Kennedy , 64 F.3d 1465, 1475 (10th Cir. 1995); 18

U.S.C. § 1341. The indictment charged that Mr. Haber’s actions with respect to

Equitable Life and his false statements to the Chafis and Ms. Corwin were part of

one overall scheme to defraud and obtain money by false pretenses. Mr. Haber

contends the misrepresentations on his disability insurance application and his

actions with respect to Equitable Life were unrelated to his efforts to obtain

money from the Visions International investors. He argues proof of a “common

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scheme” to defraud the investors would require evidence that he planned in

advance to suffer an injury and to use the resulting disability benefits to attract or

reassure the investors. He claims there is no such evidence and therefore he

should have been acquitted on the Equitable Life mail fraud counts.

We review de novo a district court’s decision to deny a motion for

judgment of acquittal, viewing the evidence in the light most favorable to the

government. United States v. Schluneger , 184 F.3d 1154, 1158 (10th Cir. 1999),

cert. denied , 120 S. Ct. 800 (2000). In the course of this review we determine

“whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Id. (quotation omitted).

Based upon our review of the record, we conclude the government

established that Mr. Haber’s false representations to Equitable Life about his

occupation and income were directly connected to his scheme to defraud the

Visions International investors. Mr. Haber used the investors’ money to

misrepresent to Equitable Life that he owned a large window and door business in

Israel from which he earned an annual income of $120,000. He could not have

obtained the policy, or the disability benefits he received thereunder, had he not

fraudulently obtained money from the Chafis and Ms. Corwin. Moreover, when

Equitable Life began to investigate the disability claim after his injury, Mr. Haber

used the money from the Chafis and Ms. Corwin, which he had deposited into his

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personal savings and checking accounts, to create the false impression that his

business provided him a significant and regular flow of income. There is also

evidence that Mr. Haber promised Ms. Chafi he would pay back her Visions

International investment from the proceeds of his disability insurance settlement.

We conclude the district court did not err in denying Mr. Haber’s motion for

judgment of acquittal on the mail fraud counts related to Equitable Life.

B. Special Unanimity Jury Instructions

We have held that 18 U.S.C. § 1341 identifies two interrelated but separate

offenses: (1) engaging in a scheme or artifice to defraud, or (2) engaging in a

scheme to obtain money or property by false or fraudulent pretenses. United

States v. Cronic , 900 F.2d 1511, 1513 (10th Cir. 1990). 3
Mr. Haber contends his

conviction should be overturned because each count in the indictment charged

him with a scheme to defraud and a scheme to obtain money by false pretenses,

while the jury instructions permitted conviction based upon either a scheme to

defraud or a scheme to obtain money by false pretenses. 4
Mr. Haber contends the

3
“[A] scheme to defraud focuses on the intended end result, not on whether a
false representation was necessary to effect the result.” Cronic , 900 F.2d at 1513.
“A scheme to obtain money by false or fraudulent pretenses, representations, or
promises, on the other hand, focuses on the means by which money was
obtained.” Id. at 1514.
4
Although some counts of the indictment charged mail fraud under 18 U.S.C. §
(continued...)

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jury’s verdict is unreliable because it is impossible to know whether each juror

voted to convict him of a scheme to defraud, or of false pretenses, or both.

“The Sixth Amendment guarantees a federal criminal defendant the right to

a unanimous jury verdict.” United States. v. Linn , 31 F.3d 987, 991 (10th Cir.

1994); see also Richardson v. United States , 526 U.S. 813, 817 (1999) (“[A] jury

in a federal criminal case cannot convict unless it unanimously finds that the

Government has proved each element.”). Mr. Haber requested a jury instruction

specifically explaining that the jury must unanimously agree as to whether there

was a scheme to defraud or a scheme to obtain money by false pretenses.

The district court refused this instruction because the jury instructions already

included a general exhortation that the verdict must be unanimous in order to

convict. See United States v. Phillips , 869 F.2d 1361, 1366-67 (10th Cir. 1988)

(if jury given general unanimity instruction and no realistic possibility of

confusion, court will assume jury understood specific findings underlying verdict

must also be unanimous).

Mr. Haber’s argument rests on an implicit contention that the indictment

was duplicitous. “A duplicitous indictment charges the defendant with two or

4
(...continued)
1341 and others wire fraud under 18 U.S.C. § 1343, both statutes contain the
same two-part language. Consequently, the separate offense analysis applies
equally to both the mail fraud and the wire fraud statutes. United States v.
Trammell , 133 F.3d 1343, 1354 n.2 (10th Cir. 1998).

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more separate offenses in the same count.” United States v. Trammell , 133 F.3d

1343, 1354 (10th Cir. 1998). However, Mr. Haber failed to object prior to trial to

any error stemming from the duplicitous indictment. In this circuit, a defendant’s

failure to “timely challenge his indictment on duplicity grounds . . . waive[s] any

later challenge based on a failure to use a special verdict form to avoid the

alleged duplicity problem.” Id.

In some circumstances, “a defendant can raise a late challenge to a

duplicitous indictment if cause is shown that might justify the granting of relief

from the waiver.” Id. (quotation omitted). No such cause is shown in this case.

“When a jury returns a guilty verdict on an indictment charging several acts in the

conjunctive, . . . [a general] verdict stands if the evidence is sufficient with

respect to any one of the acts charged.” Griffin v. United States , 502 U.S. 46, 56-

57 (1991) (quotation omitted). Here, the government went further and established

both alternative offenses with respect to each count of mail and wire fraud; that

is, it proved that Mr. Haber engaged in both a scheme to defraud and a scheme to

obtain money by false pretenses, representations and promises. We note that Mr.

Haber does not contend there was insufficient evidence to uphold either of the

alternative theories. Even if the jury unanimity issues were properly before us,

therefore, we would find any error harmless.

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C. Court Reporters Act

Mr. Haber next contends the district court committed reversible error by

failing to ensure that the court reporter transcribed three bench conferences. 5
The

Court Reporters Act requires that all proceedings in criminal cases held in open

court be recorded verbatim by shorthand or mechanical or electrical means. 28

U.S.C. § 753(b). This requirement applies to side-bar or bench conferences. E.g. ,

United States v. Winstead , 74 F.3d 1313, 1321 (D.C. Cir. 1996); Edwards v.

United States , 374 F.2d 24, 26 (10th Cir. 1966). The requirements of the Court

Reporters Act are mandatory, and no request for recordation is required.

Edwards , 374 F.2d at 26 n.2. Nevertheless, we have held that violation of this

duty is not per se prejudicial error. Id. at 26. Rather, reversible error occurs

when “the unavailability of a transcript makes it impossible for the appellate court

to determine whether or not prejudicial error was committed” with regard to a

challenged action. Id.

Mr. Haber does not contend the transcript omissions make it impossible for

this court to determine whether prejudicial error occurred, nor does he allege he

5
Mr. Haber complained in his opening brief that the court reporter had also failed
to transcribe the parties’ objections to the jury instructions and the jury
instruction conference. Two months after the opening brief was filed, the court
reporter located, with the government’s assistance, a recording of the parties’
objections and exceptions to the jury instructions. That portion of the record was
then transcribed and added to the record on appeal, and it is no longer at issue.

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suffered any specific prejudice with respect to the omissions. Instead, he argues

he is entitled to a new trial without a specific showing of prejudice because his

appellate counsel did not represent him at trial, and thus was not present to know

what happened during the bench conferences. He relies on United States v. Selva ,

559 F.2d 1303 (5th Cir. 1977), which held that a defendant should be granted a

new trial, even without a showing of specific prejudice, when defendant has new

counsel on appeal and there are significant and substantial omissions from the

trial transcript. Id. at 1306; accord United States v. Preciado-Cordobas , 981 F.2d

1206, 1212 (11th Cir. 1993) (following Selva precedent as binding because issued

before Fifth Circuit split into Eleventh).

This approach has not been followed by any other circuit. All other circuits

considering the issue have concluded that, whether or not appellate counsel is

new, the defendant must show the transcript errors specifically prejudiced his

ability to appeal. United States v. Huggins , 191 F.3d 532, 537 (4th Cir. 1999),

cert. denied , 529 U.S. 1112 (2000); United States v. Kelly , 167 F.3d 436, 438 (8th

Cir. 1999); United States v. Brand , 80 F.3d 560, 563 (1st Cir. 1996); Winstead , 74

F.3d at 1321-22; United States v. Sierra , 981 F.2d 123, 126 (3rd Cir. 1992);

United States v. Antoine , 906 F.2d 1379, 1381 (9th Cir. 1990); United States v.

Gallo , 763 F.2d 1504, 1530-31 (6th Cir. 1985) . We agree with the majority of our

sister circuits that some showing of prejudice is required before non-compliance

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with the Court Reporters Act necessitates reversal of a defendant’s conviction. In

any event, we are bound by the precedent of this circuit, United States v. Killion ,

7 F.3d 927, 930 (10th Cir. 1993), and Edwards , 374 F.2d at 26 (required prejudice

despite a change in counsel on appeal).

Moreover, the facts of this case fail even to meet Selva’s test. Courts

following the Selva standard reverse “only upon a showing that there is a

substantial and significant omission in the transcript.” United States v.

Colmenares-Hernandez , 659 F.2d 39, 43 (5th Cir. 1981) (emphasis added). Here,

over the course of a nine-day trial involving dozens of witnesses, the court

reporter failed to transcribe three relatively minor bench conferences, only two of

which involved an evidentiary objection by Mr. Haber’s defense counsel.

Viewing the record as a whole, the untranscribed portions of the trial in this case

do not constitute “significant and substantial” omissions from the trial transcripts.

See United States v. Stefan , 784 F.2d 1093, 1102 (11th Cir. 1986) (absence of

transcripts from one hour and forty-five minute bench conference not substantial

and significant omission).

As noted, Mr. Haber has not articulated any prejudice suffered as a result of

the omitted bench conferences. We have carefully reviewed the record and are

satisfied that Mr. Haber suffered no prejudice because there is no “likelihood that

reversible error occurred during [these] few untranscribed bench conferences.”

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Winstead , 74 F.3d at 1321. We do not, of course, condone off-the-record bench

conferences. It is the duty of the district court to comply with the Court

Reporters Act, and off-the-record side-bar or bench conferences are improper.

Nevertheless, the burden is upon Mr. Haber to demonstrate prejudice stemming

from the failure to adhere to the requirements of section 753(b), and he has not

done so.

D. Abuse of Position of Trust Sentence Enhancement

The district court imposed a sentence enhancement pursuant to

U.S. Sentencing Guidelines Manual § 3B1.3 (1998) (USSG). That guideline

provides, in pertinent part: “If the defendant abused a position of public or

private trust, or used a special skill, in a manner that significantly facilitated

the commission or concealment of the offense, increase [the offense level] by

2 levels.” Id. The Sentencing Commission has explained that “‘[p]ublic or

private trust’ refers to a position of public or private trust characterized by

professional or managerial discretion ( i.e ., substantial discretionary judgment

that is ordinarily given considerable deference).” Id. cmt. n.1.

We review the district court’s application of the Sentencing Guidelines

de novo , but review its underlying findings of fact for clear error. United States

v. Burridge , 191 F.3d 1297, 1301 (10th Cir. 1999). Whether a defendant occupied

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a position of trust under USSG § 3B1.3 is generally a factual matter. Id. at 1305.

In making this determination, the district court may consider a number of factors,

including: “the extent to which the position provides the freedom to commit a

difficult-to-detect wrong, and whether an abuse could be simply or readily

noticed; defendant’s duties as compared to those of other employees; defendant’s

level of specialized knowledge; defendant’s level of authority in the position; and

the level of public trust.” United States v. Williams , 966 F.2d 555, 557 (10th Cir.

1992) (citations omitted).

Section 3B1.3 embraces conduct involving a fiduciary or personal trust

relationship. However, courts “must carefully distinguish between those

arms-length commercial relationships where trust is created by the defendant’s

personality or the victim’s credulity, and relationships in which the victim’s trust

is based on defendant’s position in the transaction.” United States v. Koehn , 74

F.3d 199, 201 (10th Cir. 1996). “To invoke § 3B1.3, the defendant must either

occupy a formal position of trust or must create sufficient indicia that he occupies

such a position of trust that he should be held accountable as if he did occupy

such a position.” United States v. Queen , 4 F.3d 925, 929 n.3 (10th Cir. 1993).

Mr. Haber contends there was merely a relationship of confidence in this case, not

a fiduciary or personal trust relationship.

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 We are satisfied from our review of the evidence that Mr. Haber was in

a fiduciary or personal trust relationship with the Chafis and Ms. Corwin.

They entrusted him with supervision and management of their investment funds

because he held himself out as the operating partner and manager of Visions

International, responsible for all its Israeli operations. Mr. Haber acknowledged

that he was the “key man” in the purported business, and that no one else had the

connections he had with anyone in Israel or knew how to conduct the business.

R. Vol. VII, at 1068-69. A defendant occupying a sham position of trust is

subject to the section 3B1.3 enhancement. See USSG § 3B1.3, cmt. n.2 (“This

adjustment also applies in a case in which the defendant provides sufficient

indicia to the victim that the defendant legitimately holds a position of private or

public trust when, in fact, the defendant does not.”); see also United States v.

Lowder , 5 F.3d 467, 473 (10th Cir. 1993) (upholding enhancement where

defendant entrusted with, and able to spend, investor funds without oversight only

because of his position as president of sham investment corporations).

As the managing partner of Visions International, Mr. Haber was

responsible for opening a corporate bank account in Israel and for hiring an

Israeli attorney and accountant. He therefore had great discretion to use the

Chafis’ and Ms. Corwin’s investment money as he chose, without supervision or

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accountability. He was to be responsible for all of the company’s Israeli

operations, making it very difficult for the investors to detect his fraud.

Mr. Haber was the only one of the investors who spoke Hebrew and he claimed to

have the crucial relationships with Israeli building developers, lawyers, bankers

and government officials, and with the American window and door manufacturers.

Thus, he also claimed to possess a significant degree of specialized knowledge.

We conclude the district court did not err in increasing Mr. Haber’s sentence

under section 3B1.3.

Mr. Haber further contends the district court’s factual findings are

inadequate to support the section 3B1.3 enhancement. The district court stated

that it found the presentence report’s findings with respect to Mr. Haber’s abuse

of a position of trust to be correct, and this was sufficient. United States v.

Denetclaw , 96 F.3d 454, 459 (10th Cir. 1996) (district court’s adoption of

presentence report satisfies its obligation to make findings regarding sentence

enhancement).

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E. Amount of Intended Loss

Finally, Mr. Haber contends the district court erred in increasing his

offense level by eleven levels based on its finding that he intended to inflict a loss

in excess of $800,000 on Equitable Life. Under USSG § 2F1.1(b)(1), the offense

level is calculated based in part on the dollar value of the loss involved in the

criminal conduct. Mr. Haber points out that the actual loss to all of his victims

was $333,910, which includes the $20,000 that Equitable Life paid him in four

monthly installments prior to rescinding his disability policy. However, if the

loss that a defendant intended to inflict can be determined and it exceeds the

actual loss, the Sentencing Guidelines provide that the court should use the

intended loss to calculate the defendant’s offense level. Id. , cmt. n.8. “To meet

the requirements of the Guideline, . . . the record must support by a

preponderance of the evidence the conclusion that [the defendant] realistically

intended a [particular] loss, or that a loss in that amount was probable.” United

States v. Smith , 951 F.2d 1164, 1168 (10th Cir. 1991). “[A]n intended loss under

§ 2F1.1 ‘cannot exceed the loss a defendant in fact could have occasioned if his

or her fraud had been entirely successful,’ regardless of whatever loss the

defendant subjectively believed he or she could impose on the fraud victim.”

United States v. Galbraith , 20 F.3d 1054, 1059 (10th Cir. 1994) (quoting United

States v. Santiago , 977 F.2d 517, 524 (10th Cir. 1992)).

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 The district court based its finding of intended loss on the fact that,

under the terms of the policy, Mr. Haber was entitled to $5,000 a month until he

was sixty-five, and on the evidence at trial that Mr. Haber intended to claim that

amount of benefits from Equitable Life. The district court concluded that

settlement negotiations between Mr. Haber and the insurer, which occurred after

Equitable Life rescinded its policy, were not relevant.

Mr. Haber contends the evidence does not support a finding that he

reasonably intended Equitable Life to lose $800,000. He relies on the fact that

during the settlement negotiations, Equitable Life’s highest settlement offer to

him was only $140,000. Citing Santiago , 977 F.2d 517, Mr. Haber argues that his

intended loss could not have been greater than that amount, regardless of his

subjective belief as to his policy’s value.

Santiago is easily distinguished. There, the defendant falsely reported to

his insurance company that his car, which had a “blue book” value of $4,800, had

been stolen, and he submitted a claim for $11,000. Id. at 519. We held that the

intended loss was $4,800 despite the insured’s higher claim because the

“insurance company would not have paid more than the car’s $4,800 blue book

value in any circumstances.” Id. at 526. In contrast, Mr. Haber was entitled

under the terms of his disability policy to receive monthly benefits of $5,000

during his working lifetime. He filed a counterclaim against Equitable Life

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demanding this amount and testified at trial that Equitable Life owed him $5,000

a month until he was sixty-five. He was thirty-seven at the time he filed his

disability claim, and the monthly payments he sought from Equitable Life would

have totaled approximately $1,620,000, far in excess of the court’s finding of

$800,000. The loss that Mr. Haber intended Equitable Life to suffer was

economically feasible because, unlike the defendant in Santiago , he was capable

of inflicting that loss and had some reasonable prospect of success. Had

Equitable Life not investigated Mr. Haber’s claim and discovered his fraud, it

would have continued to pay him $5,000 a month throughout his working life.

The district court did not err in holding that $800,000 was part of Mr. Haber’s

scheme to defraud Equitable Life and was an “intended loss” under section 2F1.1.

We AFFIRM defendant’s conviction and sentence on all counts.

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