[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-11398 MAY 15, 2002
________________ THOMAS K. KAHN
D. C. Docket No. 00-CR-00109 CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAM KUMAR SINGH, a.k.a.
Ashivil Kumar, a.k.a. Mohan Kumar,
a.k.a. Lawrence Birch, a.k.a. Kenneth Bryant,
a.k.a. Edwin Cintron, a.k.a. Caleb Deitch,
Defendant-Appellant.
________________
No. 01-11399
________________
D. C. Docket No. 00-00213-CR-1-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAJIV R. SINGH, a.k.a. Dev Anand,
a.k.a Alan Matthew, a.k.a. Henry
Mehta, a.k.a. Jarad D. Mortin,
Defendant-Appellant.
______________________________
Appeals from the United States District Court
for the Southern District of Alabama
______________________________
(May 15, 2002)
Before ANDERSON, Chief Judge, DUBINA, Circuit Judge, and MILLS*, District
Judge.
RICHARD MILLS, District Judge:
Posit: In order for a defendant to receive a two-level enhancement pursuant
to U.S.S.G. § 2F1.1(b)(6)(B), must the defendant personally commit a substantial
part of the fraudulent scheme from outside of the United States?
We think not, and therefore, affirm Defendant’s sentence.
I. BACKGROUND
From July 1998 to May 2000, Ram Kumar Singh (a/k/a Rajiv Singh), along
with his co-conspirators in Kuwait, engaged in a “call sell” scheme to defraud
AT&T, Bell South, and other long distance and local telephone service providers.
Generally, the scheme worked like this: Singh would obtain rental space at
*
Honorable Richard Mills, U. S. District Judge for the Central District of Illinois, sitting
by designation.
2
various locations in Alabama and Louisiana (and other states) and, then, would
establish local and long distance telephone service at those locations using false
personal and business identities and fraudulent social security numbers.
Meanwhile, Singh’s Kuwaiti contacts would set up telephone banks in Kuwait to
receive the telephone calls coming from Singh’s telephone lines.
Once telephone service had been established, long distance telephone calls
were placed to both domestic and Middle Eastern countries from Singh’s telephone
lines. Specifically, Singh would call Kuwait and then would connect that party
who was using one of Singh’s co-conspirator’s telephone banks to a receiving
party in a different country using the three-way calling system on Singh’s
telephone lines.1 Singh’s co-conspirators would collect a fee from their Kuwaiti
customers and would wire a portion of that money to Singh. When the telephone
bills came due, Singh would not pay them and would move on to a new location.
Singh’s telephone bills in Alabama totaled $126,172.00 and in Louisiana totaled
$68,784.05.
On June 30, 2000, a federal grand jury sitting in the Southern District of
Alabama returned an Indictment against Singh charging him with one count of
1
Singh’s telephone lines were also used directly for domestic and foreign long distance
telephone calls.
3
conspiracy to commit wire fraud in violation of 18 U.S.C. § 371 and with fourteen
counts of fraudulently using a social security number in violation of 42 U.S.C. §
408(a)(7)(B) in connection with his call sell scheme. On August 17, 2000, a
federal grand jury sitting in the Middle District of Louisiana returned an
Indictment against Singh charging him with one count of conspiracy to commit
wire fraud in violation of 18 U.S.C. § 371 and with seven counts of wire fraud in
violation of 18 U.S.C. §§ 1343 and 2 in connection with his call sell scheme.
Thereafter, the Louisiana Indictment was transferred to the Southern District
of Alabama pursuant to Federal Rule of Criminal Procedure 20, and Singh pleaded
guilty to the two counts of conspiracy to commit wire fraud charged in the two
Indictments.2 After a sentencing hearing which spanned two days and at which
Singh testified twice, the district court sentenced Singh to 33 months of
imprisonment on each of his two counts of conviction and imposed restitution in
the amount of $194,966.05. The district court ordered that Singh’s two 33 month
sentences of imprisonment be served concurrently.
On appeal, Singh challenges his 33 month sentence on three grounds.
First, Singh argues that the district court erred in awarding him a two level
2
The remaining counts in the two Indictments were dismissed pursuant to a motion by the
Government.
4
enhancement in his adjusted offense level, pursuant to U.S.S.G. § 2F1.1(b)(6)(B)
(2000), based upon a finding that a substantial part of the fraudulent scheme was
committed from outside the United States. Singh asserts that the plain language of
that Sentencing Guideline provision indicates that the enhancement is only
justified if a substantial part of the fraudulent scheme originated from outside of
the United States. Singh contends that a substantial part of his call sell scheme did
not originate from outside of the United States because every fraudulent telephone
call originated from the United States, because the fraudulent telephone service
accounts were established in the United States, and because the three-way calling
connection was made by an operator within the United States.
Furthermore, Singh claims that it is clear that the United States Sentencing
Commission did not intend U.S.S.G. § 2F1.1(b)(6)(B) to apply in this case because
there was no foreign connection which was established in order to conceal the
crime, which made the discovery of the crime more difficult, or which was
established in order to avoid the application of United States law. Finally, Singh
asserts that, in order for the enhancement to apply, the defendant must personally
commit part of the scheme from outside of the United States. Because he did not
take any action outside of the United States in furtherance of the call sell scheme,
Singh argues that the district court erred in enhancing his adjusted offense level
5
pursuant to U.S.S.G. § 2F1.1(b)(6)(B).
Second, Singh asserts that the district court erred in enhancing his adjusted
offense level by two-levels, pursuant to U.S.S.G. § 3C1.1, for obstructing justice
because, contrary to the district court’s finding, he did not deny the existence of a
foreign connection or deny that at least some of the telephone calls were being
made through Kuwait. Rather, Singh maintains that he simply denied having
personally made the telephone calls to Kuwait and that the Government’s evidence
failed to prove otherwise.3 Moreover, Singh asserts that, to the extent that the
district court found otherwise, it did so because it misunderstood Singh’s testimony
due to Singh’s limited ability to speak English. In any event, Singh contends that,
if this Court finds his enhancement under U.S.S.G. § 2F1.1(b)(6)(B) to be invalid,
then his testimony regarding the foreign connection would be immaterial and his
obstruction of justice enhancement would be void.
Third, Singh claims that the district court erred in denying his acceptance of
3
Singh testified at his sentencing hearing that the calls were made by immigrants who
followed him around the country in order to use his fraudulently established telephone service
and by immigrants who resided in the various locations at which he established fraudulent
telephone service. Singh also testified that these immigrants would pay him $500.00 in order to
establish telephone service at the various locations throughout the country, and then, the
immigrants would come to that location and would made long distance and international
telephone calls. However, Singh denied ever acting as a telephone operator for any other party,
denied ever placing telephone calls for anyone, and denied ever using the telephone’s three-way
calling feature in order to connect any party.
6
responsibility reduction pursuant to U.S.S.G. § 3E1.1, asserting that he did not
willfully testify falsely in order to obstruct justice and that he has accepted
responsibility for crimes. Accordingly, Singh asks us to remand this case for re-
sentencing.
II. ANALYSIS
A. “OUTSIDE THE UNITED STATES” ENHANCEMENT
U.S.S.G. § 2F1.1(b)(6) provides:
If (A) the defendant relocated, or participated in relocating, a
fraudulent scheme to another jurisdiction to evade law enforcement or
regulatory officials; (B) a substantial part of a fraudulent scheme was
committed from outside of the United States; or (C) the offense
otherwise involved sophisticated means, increase by 2 levels. If the
resulting offense level is less than level 12, increase to level 12.
Id. Neither this Court nor any other court of which we are aware has determined
whether this enhancement applies to a fraudulent call sell scheme such as the one
involved in this case. Moreover, neither this Court nor any other court of which
we are aware has analyzed or determined the meaning or scope of the phrase
“committed from outside of the United States” as it is used in subsection (B).
“‘[L]anguage in the Sentencing Guidelines is to be given its plain and
ordinary meaning. Further, where the guidelines provide no indication as to a
particular application[,] the Court looks to the language and purpose of the
Sentencing Guidelines for instruction.’” United States v. McClain, 252 F.3d 1279,
7
1286 (11th Cir. 2001), quoting United States v. Pompey, 17 F.3d 351, 354 (11th
Cir. 1994).
Singh’s argument finds some support in the stated reason for Amendment
577 (i.e., the amendment which amended U.S.S.G. § 2F1.1) which is contained
within the Guidelines’ Supplement to Appendix C. Therein, the Sentencing
Commission noted that “[t]he first two prongs address conduct that the
Commission has been informed often relates to telemarketing fraud . . . .
Specifically, the Commission has been informed that fraudulent telemarketers
increasingly are conducting their operations from Canada and other locations
outside the United States.” U.S.S.G. App. C, amend. 577. Here, the call sell
scheme did not involve a telemarketing scheme, let alone a telemarketing scheme
operated from outside of the United States.
However, the Sentencing Commission also noted that Amendment 577 may
apply to criminal conduct in connection with fraudulent schemes perpetrated by
means other than telemarketing fraud. Id. In addition, the background notes to
U.S.S.G. § 2F1.1 state that “[t]his guideline is designed to apply to a wide variety
of fraud cases” and also state that “[s]ubsection (b)(6) implements, in a broader
form, the instruction to the Commission in section 6(c)(2) of Public Law 105-184.”
Thus, we do not believe that the two-level enhancement under U.S.S.G. §
8
2F1.1(b)(6)(B) is reserved solely to punish telemarketing fraud.
Furthermore, were we to adopt Singh’s interpretation of the guideline, we
would do a disservice to its plain meaning. U.S.S.G. § 2F1.1(b)(6)(B) only
requires that a substantial portion of the scheme be committed from outside of the
United States; it does not require that the scheme originate from outside of the
United States. Singh’s reading of the guideline would require us to insert
“originate” into the guideline provision for substantial–a course of action we
should not and will not follow.
Finally, we do not believe that the defendant must personally take action
from outside of the United States in order for the enhancement to apply. First, if
we were to limit a defendant’s culpability as asserted by Singh, we would
contradict the well-established principle that an act may be imputed from one
co-conspirator to another. See United States v. Gallo, 195 F.3d 1278, 1281 (11th
Cir. 1999)(holding that “[t]he Guideline instructs that an act may be imputed from
one co-conspirator to another provided the conduct was (1) reasonably foreseeable,
and (2) in furtherance of the jointly undertaken criminal activity . . . .)(internal
quotation omitted); see also United States v. Rayborn, 957 F.2d 841, 844 (11th Cir.
1992)(holding that “all losses caused by fraud or deceit which are governed by . . .
§ 2F1.1 may be imputed to a defendant who was a member of the conspiracy
9
which caused those losses.”).
Second, a close reading of the guideline provision indicates that the
Sentencing Commission did not intend to limit the enhancement as argued by
Singh. Subsection (A) of U.S.S.G. § 2F1.1(b)(6) specifically states that, “[i]f the
defendant relocated, or participated in relocating . . .”, then a two-level
enhancement is appropriate. Id. (emphasis added). Subsection (B) provides no
such qualifier or limitation upon individual liability. Thus, the statutory rule of
inclusio unius est exclusio alterius applies. See United States v. Koonce, 991 F.2d
693, 698 (11th Cir. 1993)(recognizing the well-established canon of statutory
construction that the inclusion of one implies the exclusion of others).
In the case sub judice, the district court possessed ample evidence to apply
the enhancement. Audrey Hanes, a fraud investigator for AT&T, testified at
Singh’s sentencing hearing that ninety-nine percent of the telephone calls
attributed to Singh were international calls and that ninety percent of the telephone
calls were placed to Kuwait and then employed the telephone’s three-way calling
feature to connect the Kuwaiti party with a party in another country. While it is
true that the Government did not produce any evidence regarding the identity or
number of co-conspirators in Kuwait or any other country, the fact that the
telephone’s three-way calling feature was employed ninety percent of the time to
10
place telephone calls to Kuwait and then to other countries implies that there was
someone else involved, that that someone else was outside of the United States,
and that that someone else took actions outside of the United States in furtherance
of the fraudulent scheme. Furthermore, the Government presented evidence that
Singh received (at a Western Union office in Mobile, Alabama) a $500.00 wire
transfer from someone in Kuwait.
Based upon this evidence, we cannot say that the district court erred in
enhancing Singh’s sentence by two levels pursuant to U.S.S.G. § 2F1.1(b)(6)(B).
The district court made a factual finding that a substantial portion of the
conspiracies of which Singh was convicted occurred outside of the United States.
See United States v. Bradford, 277 F.3d 1311, 1312 (11th Cir. 2002), citing United
States v. McClendon, 195 F.3d 598, 600 (11th Cir. 1999)(noting that “[t]his Court
reviews a district court’s factual findings for clear error and their application of the
Guidelines to those facts de novo.”). The evidence clearly established that some of
the conspiracy’s acts occurred outside of the United States, and Singh is
responsible for these actions by his co-conspirator(s) because these acts were
reasonably foreseeable and were taken in furtherance of the conspiracy. Gallo, 195
F.3d at 1281. Accordingly, we affirm the district court’s decision to enhance
Singh’s adjusted offense level by two-levels, pursuant to U.S.S.G. §
11
2F1.1(b)(6)(B), because a substantial part of the fraudulent scheme of which he
was convicted was committed from outside of the United States.
B. OBSTRUCTION OF JUSTICE ENHANCEMENT
U.S.S.G. § 3C1.1 provides for a two level enhancement for defendants who
“willfully obstruct[] or impede[], or attempt[] to obstruct or impede, the
administration of justice during the course of the investigation, prosecution, or
sentencing of the instant offense of conviction . . . .” Id. A defendant may obstruct
or impede justice by “committing, suborning, or attempting to suborn perjury.”
U.S.S.G. § 3C1.1, comment. (n. 4(b)). Perjury, for purposes of applying this
enhancement, has been defined by the United States Supreme Court as “false
testimony concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.” United
States v. Dunnigan, 507 U.S. 87, 94 (1993); see United States v. Hubert, 138 F.3d
912, 915 (11th Cir. 1998)(holding that “[p]erjury under oath on material matters,
not due to confusion or mistake, justifies such an increase.”). For purposes of
U.S.S.G. § 3C1.1, “‘[m]aterial’ . . . means evidence, fact, statement, or information
that, if believed, would tend to influence or affect the issue under determination.”
U.S.S.G. § 3C1.1, comment. (n. 6).
When applying this enhancement, “the district court [should] make specific
12
findings as to each alleged instance of obstruction by identifying the materially
false statements individually . . . .” United States v. Arguedas, 86 F.3d 1054, 1059
(11th Cir. 1996). However, “a general finding that an enhancement is warranted
suffices if it encompasses all of the factual predicates necessary for a perjury
finding.”4 United States v. Lewis, 115 F.3d 1531, 1538 (11th Cir. 1997); see
United States v. Diaz, 190 F.3d 1247, 1256 (11th Cir. 1999)(same). “We review
for clear error the district court’s factual findings necessary for an obstruction of
justice enhancement based on perjury . . . [and] accord great deference to the
district court’s credibility determinations.” United States v. Gregg, 179 F.3d 1312,
1316 (11th Cir. 1999)(internal citation omitted); 18 U.S.C. § 3742(e). “[W]e give
due deference to the district court’s application of the guidelines to the facts”,
United States v. Yount, 960 F.2d 955, 956 (11th Cir. 1992), and review the district
court’s “application of law to those facts de novo.” United States v. Trout, 68 F.3d
1276, 1279 (11th Cir. 1995); see United States v. Rodriguez, 279 F.3d 947, 951
(11th Cir. 2002)(same).
4
Four elements must be present in order for a court to make a finding that a defendant
perjured himself: (1) the testimony must be under oath or affirmation; (2) the testimony must be
false; (3) the testimony must be material; and (4) the testimony must be given with the willful
intent to provide false testimony and not as a result of a mistake, confusion, or faulty memory.
Dunnigan, 507 U.S. at 94; 18 U.S.C. § 1621(1); see United States v. Forrest, 623 F.2d 1107,
1110 (5th Cir. 1980)(holding that “[i]n order to prove that a defendant committed perjury, the
government must prove that his statements were false and that he did not believe them to be
true.”).
13
In the present case, the district court made the specific factual findings
necessary to support the obstruction of justice enhancement under U.S.S.G. §
3C1.1. After hearing him testify twice, the district court found that Singh had
provided false testimony at his sentencing hearing when he denied a Kuwaiti
connection to his call sell scheme, when he denied placing the telephone calls
himself, and when he denied using the names and social security numbers on his
“customer list” in order to fraudulently establish telephone service in the United
States as his part of the call sell scheme. In short, the district court found that
Singh had only admitted to a minor part of the crime.
We believe that the record supports the district court’s finding that Singh
committed perjury when he testified during his sentencing hearing. First, we defer
to the district court’s credibility finding as it had the opportunity to see Singh and
to view him while he testified and found him not to be telling the complete truth.
Gregg, 179 F.3d at 1316. Second, as noted supra, the evidence established that the
calls originated from the United States and that ninety percent of those telephone
calls were made to Kuwait and then the telephone’s three-way calling feature was
employed to connect the Kuwaiti party with a party in some other country. Third,
the evidence established that Singh called the same telephone numbers in Kuwait
from each location where he fraudulently established telephone service.
14
Fourth, Singh’s testimony that five customers from New York City followed
him around the country in order to use his telephone system is unworthy of
credence, especially in light of the evidence presented by the Government that
neither Singh’s neighbors nor his landlord saw anyone but him enter the facilities
which he had rented. Fifth, the evidence showed that Singh received a wire
transfer of $500.00 from someone in Kuwait.5 Thus, Singh’s continued denial of a
Kuwaiti connection is incredible, is the result of a willful intent to provide false
testimony, and cannot possibly be the result of a mistake, confusion, or faulty
memory.6
Accordingly, because the Sentencing Guidelines allow for an enhancement
for obstruction of justice when a defendant commits perjury during a sentencing
hearing and because the district court correctly applied the appropriate standard in
determining that Singh had committed perjury during his sentencing hearing, we
cannot say that the district court’s decision to enhance Singh’s adjusted offense
level pursuant to U.S.S.G. § 3C1.1 was clearly erroneous. Therefore, we affirm the
5
Singh’s denial of a foreign connection to the call sell scheme was material in that, had
the district court believed his testimony, he would not have received a two-level enhancement to
his adjusted offense level pursuant to U.S.S.G. § 2F1.1(b)(6)(B).
6
There is no evidence in the record to support Singh’s contention that the district court
improperly enhanced his sentence because the district court could not understand his testimony
because of Singh’s limited English language skills.
15
district court on this issue.
C. LOSS OF ACCEPTANCE OF RESPONSIBILITY REDUCTION
Finally, under the Sentencing Guidelines, a defendant may receive a two-
level or a three-level reduction in his offense level if he accepts responsibility for
his offense(s) in a timely manner. U.S.S.G. § 3E1.1. We review “the district
court’s determination of acceptance of responsibility only for clear error.” United
States v. Dodd, 111 F.3d 867, 870 (11th Cir. 1997). “A district court’s
determination that a defendant is not entitled to acceptance of responsibility will
not be set aside unless the facts in the record clearly establish that a defendant has
accepted personal responsibility.” United States v. Sawyer, 180 F.3d 1319, 1323
(11th Cir. 1999).
In the instant case, we cannot say that the district court committed clear error
in denying Singh a reduction in his adjusted offense level for accepting
responsibility for his crimes or that the record clearly establishes that Singh has
fully accepted personal responsibility for his crimes. As noted supra, the district
court did not err in finding that Singh committed perjury when he testified at his
sentencing hearing or in finding that Singh only admitted to a minor part of his
crimes.
“Conduct resulting in an enhancement under § 3C1.1 . . . ordinarily indicates
16
that the defendant has not accepted responsibility for his criminal conduct”,
U.S.S.G. § 3E1.1, comment. (n. 4), and “[a]n adjustment under the guidelines for
acceptance of responsibility is not warranted when a defendant’s conduct results in
an enhancement for obstruction of justice.” United States v. Kramer, 943 F.2d
1543, 1547 n. 4 (11th Cir. 1991). Here, Singh willfully testified falsely at his
sentencing hearing, and no extraordinary circumstances exist which would justify
applying adjustments under both U.S.S.G. §§ 3C1.1 and 3E1.1. Accordingly, we
affirm the district court’s decision not to grant Singh a reduction in his adjusted
offense level, pursuant to U.S.S.G. § 3E1.1, for acceptance of responsibility.
For these reasons, we affirm Singh’s sentence as imposed by the district
court.
AFFIRMED.
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