United States v. Labib

38 F. App'x 257
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 1, 2002
DocketNo. 01-3045
StatusPublished
Cited by5 cases

This text of 38 F. App'x 257 (United States v. Labib) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Labib, 38 F. App'x 257 (6th Cir. 2002).

Opinion

PER CURIAM.

From 1994 to 1998, defendant Toufik Labib and eight others were involved in a scheme to defraud financial institutions and launder money. They used fictitious names, social security numbers, addresses, and telephone numbers to establish bogus American Express merchant accounts and bank accounts. In a plea agreement, La-bib pled guilty to 4 of the 20 counts with which he was originally charged: a conspiracy to launder money, 18 U.S.C.A. § 1956(h) (West 2000); the use of unauthorized access devices, 18 U.S.C.A. §§ 1029(a)(2) and 2; bank fraud, 18 U.S.C.A. §§ 1344(1) and 2; and money laundering, 18 U.S.C.A. §§ 1956(a)(1)(B)(i) and 2.

The district court held an evidentiary hearing on Labib’s objections to the presentence investigation report. The government’s evidence consisted of (1) written debriefing summaries of unsworn statements made by several co-conspirators to IRS Special Agent Richard Lewis, (2) Special Agent Lewis’ testimony about those summaries and statements, and (3) bank and credit card records and related documentation. Relying on this evidence, the district court applied two sentencing enhancements: a three-level enhancement for Labib’s being a manager or supervisor of a criminal activity involving five or more participants, U.S. Sentencing Guidelines Manual § 3B1.1(b) (2001); and a two-level enhancement based on the total amount of funds laundered through the conspiracy, id. § 1B1.3.1 Labib did not testify on his own behalf regarding these issues.

Labib disputes the court’s findings. He argues that the evidence was unreliable and insufficient to show that he acted as a manager or supervisor of the conspiracy, and that the money the others laundered should not have been imputed to him.

DISCUSSION

A sentencing court’s interpretation of the Sentencing Guidelines and sentencing statutes is reviewed de novo and its factual findings are reviewed for clear error. See United States v. Swiney, 203 F.3d 397, 401 (6th Cir.2000). “A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” United States v. Russell, 156 F.3d 687, 690 (6th Cir.1998) (quoting United States v. United States Gypsum [259]*259Co., 333 U.S. 364, 365, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Findings of fact that are crucial to the determination of a defendant’s base offense level and criminal history category must be based upon a preponderance of the evidence. Id.

1. Aggravating Bole as a Manager or Supervisor

Labib argues that the district court relied on unreliable and insufficient information to support an enhancement for his aggravating role as a manager or supervisor under Sentencing Guideline § 3B1.1(b).2

The Sentencing Guidelines provide: When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided the information has sufficient indicia of reliability to support its probable accuracy.

U.S. Sentencing Guidelines Manual § 6A1.3(a). Hearsay evidence-such as the summary reports about the statements made by Labib’s co-conspirators and Special Agent Lewis’ testimony about them-is thus admissible for sentencing so long as it bears some “minimum indicia of reliability.” United States v. Greene, 71 F.3d 232, 235 (6th Cir.1995).

Labib argues that the district court should not have relied upon the statements made by his co-defendants because they were inherently unreliable, i.e., they were unsworn and made pursuant to plea negotiations with the intention of shifting blame to him. His contention would have merit if the district court had relied only upon the unsworn, uncorroborated testimony of one or two unreliable co-defendants. See, e.g., United States v. Gibbs, 182 F.3d 408, 445 (6th Cir.1999) (remanding due to discrepancies between trial testimony and statements made to probation officer by two government witnesses); United States v. Huckins, 53 F.3d 276, 278-79 (9th Cir.1995) (remanding and noting that there was no corroborating evidence to support co-defendant’s unsworn testimony during plea negotiations); United States v. Fennell, 65 F.3d 812, 813 (10th Cir.1995) (remanding and noting that enhancement was made solely on the uncorroborated, unsworn allegations made by witness to probation officer over the telephone). The record shows that the district court took much more than this into account.

The district court held an evidentiary hearing and admitted the summaries of unsworn statements made by four co-defendants, the testimony of the agent who prepared those summaries, and corroborating financial records. Two of the co-conspirators, Chokrane and Benhamaid, specifically detail Labib’s supervisory role in the conspiracy. Included are statements as specific as which checks were endorsed by Labib, and which handwriting was Labib’s on an application for a post office box used during the conspiracy.

Contrary to Labib’s assertions, the other two co-conspirators gave statements consistent with Labib’s supervisory role. Mraih never says explicitly that Labib directed him to take certain actions, but he does say that Labib gave him checks to [260]*260deposit, drove him to the bank in a rented car so Mraih could cash fraudulent checks, and instructed him to make checks out to Labib and another co-conspirator to decrease outside suspicion. Similarly, Tazi-ny notes that he opened a fraudulent account in Labib’s presence, that he received a check from Labib, that he wrote a check payable to Labib, and that Labib purchased and used a car with the proceeds from the conspiracy.

The statements of four co-conspirators and corroborating financial records are sufficient to prove by a preponderance of the evidence that Labib served as a manager or supervisor of the conspiracy. As the district court accurately summarized:

[W]hile there were some discrepancies within the statements of the co-conspirators or co-defendants Taziny, Mraih, Chokrane, and Benhamaid, one thing is clear; that in terms of the significance of Mr. Labib’s role, he was more than a foot soldier but less than Rafik Chokrane, who clearly was the mastermind behind this. He was the general, if you will.

Nothing in the record refutes this conclusion. The court did not clearly err by applying a sentencing enhancement for Labib’s aggravating role.

II.

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38 F. App'x 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-labib-ca6-2002.