United States v. Benami-Vera

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 28, 2002
• Docket: 01-10495
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10495 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROSS BENAMI-VERA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CR-216-1-A -------------------- March 27, 2002

Before JONES, SMITH, and EMILIO GARZA, Circuit Judges.

PER CURIAM:*

Ross Benami-Vera appeals his conviction and sentence on

12 counts of making false claims to the Internal Revenue Service

(IRS). Benami-Vera argues that the district court abused its

discretion in admitting 18 tax returns into evidence. He also

argues that the district court erred in admitting various documents

which were purported to contain his signature. We have reviewed

the district court's evidentiary rulings related to each of the

challenged exhibits and found no abuse of discretion. United

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-10495 -2-

States v. McClatchy, 249 F.3d 348, 358 (5th Cir.), cert. denied,

122 S. Ct. 217 (2001).

Benami-Vera argues that there was insufficient evidence

to prove that the offenses were committed in the Northern District

of Texas. The Government has the burden of establishing venue by

a preponderance of the evidence. United States v. Winship, 724

F.2d 1116, 1124 (5th Cir. 1984); United States v. White, 611 F.2d

531, 536 (5th Cir. 1980). The evidence shows that Benami-Vera

resided and worked in the Northern District of Texas from 1989

through 1997 and that the refunds were to be sent to the Northern

District of Texas. This is sufficient evidence to establish venue.

See United States v. Chenault, 844 F.2d 1124, 1131-32 (5th Cir.

1988).

to support his convictions because the government did not prove

that he prepared the fraudulent returns. The standard of review

for "evaluating the sufficiency of the evidence supporting a

conviction after a bench trial is whether the finding of guilt is

supported by substantial evidence, i.e., evidence sufficient to

justify the trial judge, as the trier of fact, in concluding beyond

a reasonable doubt that the defendant is guilty." United States v.

Mathes, 151 F.3d 251, 252 (5th Cir. 1998). There is no dispute

that the returns were an attempt to make false refund claims to the

IRS. The district court determined that Benami-Vera submitted the

false claims because the signatures of the false returns matched

the signatures on other documents that the district court found had

been signed by Benami-Vera. The district court’s conclusive No. 01-10495 -3-

finding that Benami-Vera signed the false tax returns is sufficient

to support the conviction. See United States v. Ismoila, 100 F.3d

380, 385-88 (5th Cir. 1997); United States v. Cashio, 420 F.2d

1132, 1135 (5th Cir. 1969).

Benami-Vera argues that the district court erred by

aggregating 18 of the requested refunds to determine the intended

loss from the crime to determine his offense level. He also

asserts that the district court should have used the actual loss to

determine his sentence. We review the district court's findings of

fact for clear error and its application of the Sentencing

Guidelines de novo. United States v. Anderson, 174 F.3d 515, 524

(5th Cir. 1999).

Benami-Vera concedes that the precedent of this circuit

allows the district court to consider the six fraudulent returns

filed outside the statute of limitation as relevant conduct. See

United States v. Vital, 68 F.3d 114, 118 (5th Cir. 1995). Benami-

Vera also concedes that § 2F1.1 of the pertinent November 2000

Sentencing Guidelines allows for an offense level based on intended

loss, if greater than the actual loss. At sentencing, the district

court rejected Benami-Vera’s speculation that “[w]hoever submitted

these claims submitted multiple claims each year hoping one would

get by.” The district court did not clearly err in determining the

amount of loss as the total of all of the refunds requested in the

false returns.

AFFIRMED.