United States v. Azam Doost

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 23, 2020 Decided July 6, 2021

No. 19-3079

UNITED STATES OF AMERICA,

APPELLEE

v.

AZAM DOOST, ALSO KNOWN AS ADAM DOOST, ALSO KNOWN

AS MOHAMMAD AZAM DOOST, ALSO KNOWN AS MOHAMMAD

AZIM,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cr-00109-1)

Aaron Schwartz argued the cause for appellant. With him

on the brief were Glenn Seiden and Brooke L. Stevens.

Scott A.C. Meisler, Attorney, U.S. Department of Justice,

argued the cause and filed the brief for appellee. With him on

the brief were Michael P. McCarthy, Trial Attorney, and Brian

C. Rabbitt, Acting Assistant Attorney General. Jeremy R.

Sanders, Attorney, entered an appearance.

Before: ROGERS, KATSAS and RAO, Circuit Judges.

2

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: A jury convicted Azam Doost for his

involvement in a scheme to defraud the Overseas Private

Investment Corporation, a government agency. He now

appeals his convictions for major fraud against the United

States, wire fraud, false statements, and money laundering. He

principally argues that he received ineffective assistance of

counsel because his lawyer failed to argue that some counts of

the indictment were multiplicitous, time-barred, or both, and

also because counsel failed to admit certain exculpatory

evidence at trial. Because Doost fails to demonstrate that

counsel provided ineffective assistance, we affirm his

convictions.

I.

Doost and his brother owned a company in the United

Arab Emirates called Equity Capital Group. A subsidiary of the

company, Equity Capital Mining (the “Mine”), secured a ten-

year lease on a marble mine in Afghanistan. To finance the

mining operations, Doost executed a loan agreement between

the Mine and the Overseas Private Investment Corporation

(“OPIC”). At the time, OPIC was a federal agency that

supported “investments by the United States government in

emerging markets worldwide to foster the development and

growth of free markets.” App. 3.1 OPIC loaned the Mine $15.8

million for its development, maintenance, and operating

expenses. The loan agreement made Doost personally

responsible for a matching capital contribution. The agreement

1

In 2018, after the events relevant to this case had transpired, OPIC’s

functions were transferred to the United States International

Development Finance Corporation. See Better Utilization of

Investments Leading to Development Act of 2018, §§ 1464, 1470(a),

Pub. L. No. 115-254 Div. F, 132 Stat. 3186, 3513, 3515–16.

3

also required Doost to disclose all transactions between the

Mine and certain parties closely affiliated with the Mine,

including Doost and his brother. Pursuant to the loan

agreement, Doost submitted three disbursement requests to

OPIC—in the amount of $7 million on April 18, 2010, $7

million on July 15, 2010, and $1.8 million on November 28,

2010.

Doost’s scheme to defraud OPIC proceeded through two

avenues. First, he failed to disclose to OPIC even a single

affiliated transaction—when there were actually many

affiliated transactions that enriched Doost, his brother, and

other relatives with the Mine’s OPIC-backed money. Second,

he submitted invoices to OPIC for equipment purchases that

were false or contained false information. For example, Doost

sought reimbursement for sham purchases, overbilled for

actual purchases, and double-billed OPIC for expenditures

already reimbursed by another funding source. The OPIC loan

eventually went into default after the Mine made no principal

payments and failed to pay nearly $2 million in accrued

interest.

The government returned a 23-count indictment against

Doost, alleging major fraud against the United States, wire

fraud, false statements, and money laundering. The jury

convicted Doost on twenty counts.2 The district court

sentenced him to fifty-four months of incarceration, followed

by thirty-six months of supervised release, and ordered him to

make restitution of $8,940,742 to the United States.

Doost then filed a combined motion under Rules 29 and

33 of the Federal Rules of Criminal Procedure for judgment of

acquittal and for a new trial, claiming that trial counsel was

ineffective by failing to object to certain counts of the

indictment as time-barred, multiplicitous, or both, and also by

2

Doost was acquitted on three of eight counts of money laundering.

4

failing to admit certain evidence at trial that would have been

favorable to Doost, including calling certain witnesses. The

district court denied Doost’s motion. It held that Doost was not

prejudiced by any of counsel’s decisions not to introduce

additional evidence because ample evidence would still have

supported his conviction. United States v. Doost, 2019 WL

1560114, at *4–7 (D.D.C. Apr. 10, 2019). The district court

also held that Doost was not prejudiced by counsel’s failure to

object to the indictment as multiplicitous because it was not

multiplicitous, so such an objection would have been

unavailing. Id. at *8–10.

Lastly, with respect to the timeliness of the indictment, the

district court held that although all but two counts of the

indictment were untimely on their face, the Wartime

Suspension of Limitations Act (“WSLA”) tolled the limitations

period for the challenged major fraud count. See Act of June

25, 1948, Pub. L. No. 80-772, § 3287, 62 Stat. 683, 828

(codified as amended at 18 U.S.C. § 3287). When the United

States is engaged in foreign hostilities, the WSLA tolls the

limitations period under three circumstances: for crimes (1)

“involving … fraud against the United States,” (2) “committed

in connection with the … handling … of any real or personal

property of the United States,” or (3) “committed in connection

with” contracts that are in turn “connected with or related to the

prosecution of the war or directly connected with or related to

the authorized use of the Armed Forces.” 18 U.S.C. § 3287.

Because the WSLA tolled certain counts of the indictment

and the jury could reasonably have found that it tolled the rest,

the district court determined that Doost could not show

prejudice from counsel’s failure to challenge the indictment as

untimely, so there was no ineffective assistance of counsel. See

Doost, 2019 WL 1560114, at *11–14; United States v. Doost,

2019 WL 3344277 (D.D.C. July 24, 2019). Doost timely

appealed.

5

II.

The Sixth Amendment provides a criminal defendant with

the right “to have the Assistance of Counsel for his defence,”

U.S. CONST. amend. VI, which the Supreme Court has held

encompasses the right to effective assistance of counsel,

Strickland v. Washington, 466 U.S. 668 (1984). To prevail on

a claim of ineffective assistance, the defendant must show both

that his counsel’s performance was deficient and that the

deficient performance prejudiced him. Id. at 687.

With respect to deficient performance, we assess whether

counsel’s performance “fell below an objective standard of

reasonableness,” while “indulg[ing] a strong presumption that

counsel’s conduct [fell] within the wide range of reasonable

professional assistance.” Id. at 688, 689. With respect to

prejudice, we consider whether “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

To meet this standard, the defendant need demonstrate only a

“‘probability sufficient to undermine confidence’ in the

verdict.” United States v. Nwoye, 824 F.3d 1129, 1135 (D.C.

Cir. 2016) (quoting Strickland, 466 U.S. at 694). The defendant

bears the burden of demonstrating both elements of ineffective

assistance under the Strickland standard. Weaver v.

Massachusetts, 137 S. Ct. 1899, 1910 (2017).

We review the district court’s rulings on ineffective

assistance claims de novo. United States v. Vyner, 846 F.3d

1224, 1227 (D.C. Cir. 2017).

A.

Doost asserts that counsel performed deficiently by not

challenging the indictment as multiplicitous. We conclude that

the counts were not multiplicitous, so Doost has failed to

demonstrate ineffective assistance because “[t]he failure to

6

raise a meritless objection is not deficient performance.”

United States v. Islam, 932 F.3d 957, 964 (D.C. Cir. 2019).

A multiplicitous indictment charges the same crime in

multiple counts, which violates the Fifth Amendment’s

prohibition against double jeopardy. U.S. CONST. amend. V.

“The Fifth Amendment … protects not only against a second

trial for the same offense, but also against multiple

punishments for the same offense.” Whalen v. United States,

445 U.S. 684, 688 (1980) (cleaned up). Multiplicity is an

indictment defect that the defendant must challenge before

trial. See FED. R. CRIM P. 12(b)(3)(B)(ii); United States v.

Burroughs, 810 F.3d 833, 837 (D.C. Cir. 2016). Doost made

no such pretrial motion here. Rule 12 excuses untimely

indictment challenges, however, “if the party shows good

cause.” FED. R. CRIM. P. 12(c)(3). “Good cause” includes

ineffective assistance of counsel. See United States v. Weathers

(“Weathers I”), 186 F.3d 948, 952–53, 958–59 (D.C. Cir. 1999)

(identifying ineffectiveness as a “cause” for a forgone

multiplicity challenge).

Doost claims the indictment suffered from two multiplicity

defects. First, the three counts of major fraud were

multiplicitous because each of his three disbursement requests

to OPIC was charged separately rather than as a single

fraudulent scheme. Second, two of the false statement counts

were multiplicitous because the two statements were made in

the same document and therefore should have been charged as

a single count. We take each claim in turn.

1.

Doost was charged with three counts of major fraud

corresponding to the $7 million disbursement request made in

April 2010, the $7 million disbursement request in July 2010,

and the $1.8 million disbursement request in November 2010.

Each disbursement request was treated as a separate violation

7

of Section 2(a) of the Major Fraud Act. Pub. L. No. 100-700,

§ 2(a), 102 Stat. 4631, 4631 (codified as amended at 18 U.S.C.

§ 1031(a), (a)(2)). That provision makes it a crime to

“knowingly execute[] … any scheme or artifice with the intent

… (1) to defraud the United States; or (2) to obtain money or

property by means of false or fraudulent pretenses,

representations, or promises” in connection with a “grant,

contract, subcontract, subsidy, [or] loan” with or from the

United States if the value of the underlying grant, loan, or

contract is $1,000,000 or more. 18 U.S.C. § 1031(a). Doost

argues that entering into the loan agreement constituted a single

fraudulent scheme and should have been charged as a single

violation of the Major Fraud Act, so it was ineffective

assistance to fail to challenge the counts as multiplicitous.

In examining claims of multiplicitous indictments, this

court first determines what offense Congress made “the unit of

prosecution,” for instance, whether the statute treats the whole

fraudulent scheme as the unit of prosecution or every act within

that scheme. Bell v. United States, 349 U.S. 81, 83 (1955); see

also Weathers I, 186 F.3d at 952. While we have not previously

determined the unit of prosecution under the Major Fraud Act,

we agree with the district court that the appropriate unit of

prosecution is an “execution” of a fraudulent scheme. See

Doost, 2019 WL 1560114, at *8–9. The statutory language

criminalizes the “execut[ion]” or the

“attempt[ed] … execut[ion]” of the fraudulent scheme, not the

scheme itself.3 Moreover, we have similarly held that the

nearly identical language in “[t]he bank fraud statute makes

each ‘execution’ of a fraudulent scheme punishable as a

3

Other circuits also have interpreted the Major Fraud Act to treat

each “execution” of the fraudulent scheme as the unit of prosecution.

See, e.g., United States v. Sain, 141 F.3d 463, 473 (3d Cir. 1998)

(“By its plain language, the statute criminalizes each knowing

‘execution’ of the fraudulent scheme.”).

8

separate count.”4 United States v. Bruce, 89 F.3d 886, 889

(D.C. Cir. 1996); see also United States v. Reitmeyer, 356 F.3d

1313, 1321 n.10 (10th Cir. 2004) (citing the court’s parallel

interpretations of the bank fraud statute and the Major Fraud

Act); United States v. Sain, 141 F.3d 463, 473 (3d Cir. 1998)

(same). Absent some contrary indication, we presume identical

terms found in similar statutes should be interpreted similarly.

“Not every act in furtherance of [the fraud] is a separate

‘execution’ of the scheme,” so our task is to distinguish

between non-chargeable acts in furtherance of the fraud, and

chargeable executions of the fraud. Sain, 141 F.3d at 473; see

also Bruce, 89 F.3d at 889 (“[A]cts in furtherance of the

scheme cannot be charged as separate counts unless they

constitute separate executions of the scheme.”). Three factors

weigh in favor of finding that each request for a disbursement

of the loan proceeds was a separate execution of Doost’s

fraudulent scheme.

First, we consider whether an identifiable sum of money

can be traced to a specific fraudulent transaction. See United

States v. Gallant, 537 F.3d 1202, 1226 (10th Cir. 2008). If so,

“there is likely to be a separate execution of the scheme to

defraud.” United States v. Brandon, 17 F.3d 409, 422 (1st Cir.

1994); see also Sain, 141 F.3d at 473 (finding separate charges

for each fraudulent claim submitted pursuant to a scheme were

not multiplicitous “because each sought to obtain a separate

amount of money from the government”). This case easily

4

See 18 U.S.C. § 1344 (punishing “[w]hoever knowingly executes,

or attempts to execute, a scheme or artifice—(1) to defraud a

financial institution; or (2) to obtain [money or property of] a

financial institution, by means of false or fraudulent pretenses,

representations, or promises”). The only difference between the two

statutes is that the Major Fraud Act includes an intent element. We

see no reason why the intent element should affect the unit-of-

prosecution analysis, and the parties do not argue otherwise.

9

meets that criterion, as the indictment identifies the sums of

money that Doost requested in each of the three disbursements.

Second, we ask whether each charge involved the violation

of “a new and independent obligation to be truthful.” United

States v. Molinaro, 11 F.3d 853, 860 n.16 (9th Cir. 1993). Here,

each charge did. Every disbursement request required Doost to

prepare and submit distinct invoices and progress reports. And

each set of reports contained lies and misrepresentations

supporting Doost’s claims for payment from the government,

which militates in favor of charging the disbursement requests

separately.

Third, we consider the language of the indictment and

whether it “sufficiently describe[s] two [or more] separate and

distinct offenses.” Kerrigan v. United States, 644 F.2d 47, 49

(1st Cir. 1981); see also United States v. Benoit, 713 F.3d 1, 17

(10th Cir. 2013); Bruce, 89 F.3d at 890. Doost’s indictment

describes the numerous sets of documents that Doost had to

submit prior to each disbursement. It also plainly states that on

the three dates when Doost made disbursement requests, he

“did knowingly execute and attempt to execute the [fraudulent]

scheme.” App. 10. In other words, the indictment describes

three distinct executions of the scheme.

Based on these considerations, we conclude the decision

to charge Doost with three separate executions of a fraudulent

scheme was permissible, so trial counsel did not perform

ineffectively by failing to lodge a meritless multiplicity

challenge to the indictment.

Doost attempts to resist this conclusion by arguing that

agreeing to the loan constituted a single execution of the

scheme. Relying on United States v. Lilly, 983 F.2d 300 (1st

Cir. 1992), he maintains that where a defendant has entered into

a single loan with a single lender for a single project, multiple

misstatements during the course of that lending relationship

10

constitute a single fraud. But Lilly is inapposite because it

focused on the repetition of a single misstatement about “a

single aspect of the transaction” made to secure a single loan to

fund a single purchase. Id. at 303. By contrast, Doost submitted

different fraudulent documents about many different

purchases, engaging in fraud and misrepresentations in three

separate disbursement requests made over six months. Doost

flouted multiple, independent obligations to tell the truth, and

OPIC transferred separate payments of $7 million, $7 million,

and $1.8 million, pursuant to his separate misrepresentations.

Doost also repeatedly asserts that the loan agreement was

the only execution of the scheme because entering into the loan

agreement immediately put OPIC at risk for the entire $15.8

million, thereby fully executing the scheme. But the structure

of the loan agreement belies this argument. It contained

numerous conditions that Doost had to satisfy prior to receiving

the first disbursement. Doost also had to satisfy several other

requirements as “conditions precedent to each disbursement.”

Supplemental Appendix (“Supp. App.”) 229 (capitalization

altered). These requirements included, for instance, submitting

an extensive list of “[f]inancial [s]tatements” and “reports” to

OPIC, such as projections of future revenue, progress reports

on the Mine, funds available, lists of affiliate transactions, and

more. Supp. App. 230, 232. If Doost did not continue to meet

these conditions, OPIC could cut off his funding. Thus,

although the loan agreement was for $15.8 million, Doost had

to meet additional criteria to receive the disbursements, which

supports treating the disbursement requests as separate

“executions.”

In light of the terms of the indictment, the independent

obligation for truthfulness that attached to each disbursement

request, and the ease of pinpointing amounts of money that

changed hands via these disbursements because of Doost’s

frauds, charging this scheme in three counts was not

11

multiplicitous. It would have been meritless for Doost’s

counsel to raise a multiplicity challenge to the major fraud

counts and therefore Doost fails to demonstrate ineffective

assistance. See Islam, 932 F.3d at 964.

2.

Doost also lodges a belated multiplicity challenge to two

of the false statement counts. The indictment charged that

Doost falsely attested the Mine purchased a $596,000

blockcutter from Gaspari Menotti, when the Mine had made no

such purchase. The indictment charged in a separate count that

Doost falsely attested two chainsaws bought from the Afghan

Stone Company were costs of the Mine, but they did not qualify

as reimbursable Mine expenses because another organization

had already paid for them. Doost contends that because he

made both these statements in the same disbursement request

that he submitted to OPIC, they cannot be charged separately,

and his counsel was ineffective for not raising a challenge to

the indictment on these grounds. Once more, we disagree.

Doost’s false statements were charged under an OPIC-

specific false statement provision penalizing “[w]hoever

knowingly makes any false statement or report … for the

purpose of influencing in any way the action of [OPIC] with

respect to any … loan[] [or] equity investment, … or any

change or extension of any such … loan[] [or] equity

investment.” Jobs Through Exports Act of 1992, Pub. L. No.

102-549, § 105(b), 106 Stat. 3651, 3653 (codified at 22 U.S.C.

§ 2197(n)). The unit of prosecution here focuses on

transactions, namely false statements or reports made to OPIC

with respect to, inter alia, loans. We have previously

considered the appropriate unit of prosecution under a

substantially similar false statement provision and explained

that it “is targeted at fraudulent loan transactions, rather than

the particular falsehoods used to achieve the illegal

transaction.” United States v. Mangieri, 694 F.2d 1270, 1282

12

(D.C. Cir. 1982) (cleaned up) (identifying the unit of

prosecution under 18 U.S.C. § 1014). Here, Doost made two

false statements about two transactions, requesting one

payment of $596,000 for the blockcutter and another payment

of $821,742 for the chainsaws. OPIC was influenced to take

two actions, namely paying distinct, identifiable sums of

money for Doost’s two purchases. We hold that Doost was

properly charged with two counts of making false statements

under 22 U.S.C. § 2197(n).

Nonetheless, Doost argues that because his statements

were made in a single disbursement request, they should have

been charged as a single count in the indictment. He relies on

language in Mangieri that “the making of a number of false

statements to a lending institution in a single document

constitutes only one criminal violation.” Id. at 1281 (cleaned

up). In Mangieri, however, we explicitly left open “the

possibility that under some circumstances multiple

misrepresentations [in a single document] might justify

separate offenses.” Id. at 1282. Here, Doost’s two false

statements corresponded to two separate purchases and

resulted in two OPIC disbursements to separate organizations.

These circumstances justified charging separate offenses. The

facts here are also distinguishable from the transactions in other

cases Doost cites, in which multiple false statements in a

document resulted in a single payment. See, e.g., United States

v. Sahley, 526 F.2d 913, 918 (5th Cir. 1976) (finding a

multiplicity problem with an indictment that separately

charged false statements that “constituted a single

transaction”); see also United States v. Sue, 586 F.2d 70, 71

(8th Cir. 1978) (per curiam) (following Sahley).

Because the false statement counts are not multiplicitous,

it would have been meritless for Doost’s counsel to file a

pretrial motion to consolidate these counts. Doost therefore

13

fails to establish deficient performance. See Islam, 932 F.3d at

964.

B.

Doost next argues counsel was ineffective for failing to

object to the timeliness of counts twelve through twenty of the

indictment, which charged him with false statements and

money laundering. We hold that, regardless of whether certain

counts were actually time-barred, counsel reasonably decided

that a timeliness challenge was likely to fail and thus did not

perform deficiently by failing to raise that challenge.

We note at the outset that Doost did not raise his statute of

limitations challenge until after trial. See Musacchio v. United

States, 136 S. Ct. 709, 716–18 (2016) (explaining that the

federal statute of limitations contained in 18 U.S.C. § 3282 is

not jurisdictional and can be waived or forfeited). The parties

agree that Doost can raise his timeliness challenge now only if

good cause—his attorney’s ineffective assistance—excuses his

failure to raise it earlier. Doost, 2019 WL 3344277, at *1; see

also Musacchio, 136 S. Ct. at 718 (explaining that to the extent

plain error review is available when the defendant “fail[ed] to

raise [the statute of limitations] at or before trial,” it “cannot be

a plain error” for the district court not “to enforce an unraised

limitations defense”).

Ordinarily, the challenged counts in Doost’s indictment

would be subject to the five-year limitations period for federal

crimes. See 18 U.S.C. § 3282(a). Much of the conduct alleged

in the indictment occurred more than five years before June 7,

2017, the date of the indictment. Timeliness turns on whether

the Wartime Suspension of Limitations Act (“WSLA”) tolls the

limitations period for the counts at issue.

The question of how the WSLA applies in a case such as

this one is an issue of first impression in this circuit and one

14

without a clear answer. As relevant here, the WSLA tolls the

limitations period for any offense

(1) involving fraud or attempted fraud against the

United States or any agency thereof in any manner,

whether by conspiracy or not, or (2) committed in

connection with the acquisition, care, handling,

custody, control or disposition of any real or personal

property of the United States, or (3) committed in

connection with the negotiation, procurement, … [or]

payment for, … any contract, subcontract, or purchase

order which is connected with or related to the

prosecution of [a] war or directly connected with or

related to [an] authorized use of the Armed Forces.

18 U.S.C. § 3287.

For offenses to which the WSLA applies, the limitations

period is tolled “until [five] years after the termination of

hostilities.” Id.

Doost argues that the WSLA does not toll the limitations

period for any of the false statement and money laundering

counts. The district court held that subclause one does not

apply to any of these counts, and neither party challenges that

ruling on appeal. Doost argues subclause two does not toll the

limitations period for the crimes at issue here because that

subclause pertains only to fraudulent transactions involving

real or personal property, and Doost claims that cash and loan

proceeds are neither because they are intangible. And he

contends that tolling under subclause three is not available

because his marble mining activities bore no direct relation to

the authorized use of military force in Afghanistan, so they are

not “connected with or related to the prosecution of the war or

directly connected with or related to the authorized use of the

Armed Forces.” Id. § 3287(3).

15

Even if Doost is correct that certain counts are untimely,

that would not be sufficient because “[t]he crux of an

ineffective assistance claim is not simply whether trial counsel

neglected to press a viable legal argument, but whether

counsel’s failure to do so was objectively unreasonable under

the circumstances.” United States v. Weathers (“Weathers II”),

493 F.3d 229, 234 (D.C. Cir. 2007); cf. Harrington v. Richter,

562 U.S. 86, 109 (2011) (explaining that courts may not “insist

counsel confirm every aspect of the strategic basis for his or

her actions”). We need not resolve the merits of Doost’s claim

in order to conclude that counsel performed reasonably, and not

deficiently, in forgoing a challenge to the timeliness of the

indictment.

In this case, Doost’s counsel explained that he believed a

challenge to the timeliness of the indictment would have failed.

Counsel, who had been practicing federal criminal defense law

for over fifteen years when Doost’s trial began, swore in an

affidavit that he was aware of a potential timeliness challenge

from the outset, and he prepared to make such a challenge. He

then examined the WSLA and determined it would apply to toll

the limitations period with respect to all counts. He concluded

that because of the continuing hostilities in Afghanistan, the

WSLA generally applied, and he further concluded that

subclause one tolled the limitations period for the major fraud

counts. On this score, counsel had good company: The district

court made the same determinations, which Doost contested

below but no longer does on appeal. See Doost, 2019 WL

1560114, at *11–12.

Counsel also reasonably determined that the WSLA would

toll the other counts because they charge crimes “committed in

connection with the acquisition, care, handling, custody,

control or disposition of any real or personal property of the

United States.” 18 U.S.C. § 3287(2). Doost argues that the

statutory language “real or personal property” applies only to

16

tangible property, not to cash, money, or loan proceeds. We

need not conclusively adjudicate the merits of this dispute; it is

enough to conclude that counsel’s reading of the statute,

whereby “personal property” includes cash or loan proceeds,

was reasonable. See Weathers II, 493 F.3d at 234.

OPIC was an agency of the United States that supported

“investments by the United States government”—that is,

investments of money belonging to the United States. App. 3;

see also Supp. App. 2–3. Doost committed fraud and made his

false statements in connection with a scheme to “acqui[re]”

money belonging to the United States, exactly the type of crime

covered by the WSLA. 18 U.S.C. § 3287(2). Moreover, in

ordinary legal meaning, cash, money, loan proceeds, or other

intangibles qualify as “personal property.” See, e.g., Dickman

v. Comm’r, 465 U.S. 330, 337 (1984) (“[T]he right to use

money [is] a cognizable interest in personal property.”);

Personal Property, BLACK’S LAW DICTIONARY (11th ed. 2019)

(defining personal property as “[a]ny movable or intangible

thing that is subject to ownership and not classified as real

property”).

Counsel reasonably thought subclauses one and two tolled

the limitations period for all counts, which meant a timeliness

challenge would fail. In forgoing the timeliness challenge,

counsel was “not required to have a tactical reason” other than

the “reasonable appraisal” of the likelihood that the challenge

would fail. Knowles v. Mirzayance, 556 U.S. 111, 127 (2009);

see also Harrington, 562 U.S. at 110 (“Just as there is no

expectation that competent counsel will be a flawless strategist

or tactician, an attorney may not be faulted for a reasonable

miscalculation or lack of foresight.”). Doost cannot show

ineffective assistance, so his failure to raise the statute of

limitations defense timely cannot be excused.

17

III.

Doost additionally asserts that counsel performed

ineffectively by failing to introduce the entire email exchange

from which his false statement conviction in count fifteen

arose. He argues that the exchange shows the question he was

answering was fundamentally ambiguous, so his answer cannot

serve as the predicate for a false statement indictment. We find

this claim without merit. Doost correctly notes that “[i]f … a

question is ‘excessively vague’ or ‘fundamentally ambiguous,’

the answer [to the question] may not, as a matter of law, form

the basis of a prosecution for perjury or false statement.”

United States v. Culliton, 328 F.3d 1074, 1078 (9th Cir. 2003)

(per curiam) (cleaned up). Nothing about the exchange,

however, was fundamentally ambiguous.

The indictment charged that in response to an email from

OPIC representative John Aldonas, Doost averred “[t]hat there

were no affiliate transaction[s] that occurred during the quarter

ending September 30, 2010.” App. 13. The government

charged this as a false statement. The email from Aldonas,

which trial counsel did not admit into evidence, but Doost now

contends he should have in order to emphasize the ambiguity

of the exchange, read as follows:

Adam,5

Your attachments look like a forward looking list

of 2011 affiliated transactions between [the Mine] and

your marble finishing company.

Perhaps I have confused things, but we are

looking for you to certify quarterly, along with the

quarterly financial statements, whatever affiliated

5

“Adam” is an alternate name that Doost has occasionally used; this

email is addressed to Azam Doost.

18

transactions have taken place in that accounting

period, and that they have taken place on an arm[’]s-

length basis (with the evidence of this being the sales

and volume detail along the lines you have just

provided for 2011). If it is the case – since for example

the marble finishing operation is not yet processing

material – then you could simply certify for the

quarter ending Sept[ember] 30, 2010, that there were

no Affiliated Transactions. That said, I would ask that

you carefully read the definition of Affiliated

Transactions so you can consider what if any types of

transactions might fit the reportable category.

Doost, 2019 WL 1560114, at *2 n.1.

There is nothing fundamentally ambiguous about this

exchange, nor is there a reasonable probability that the jury

would have decided differently had it been aware of Aldonas’s

email. The email clearly asks Doost to “carefully read the

definition of Affiliated Transactions” before certifying that

there were none. Aldonas says Doost can “simply certify for

the quarter … that there were no Affiliated Transactions,” but

only “[i]f it is the case” that all transactions “have taken place

on an arm[’]s-length basis.” Determining how a hypothetical

jury would have analyzed additional evidence is not a rock-

solid endeavor. “It is inherently a speculative exercise,” and

this court has not prescribed any means of doing it other than

using its judgment. Nwoye, 824 F.3d at 1139. In our judgment,

Doost falls far short of showing a reasonable probability that

introducing this email into evidence would have resulted in

acquittal of this false statement charge on the basis of

ambiguity in the question. The directions the email provided

are simply not that complicated.

Moreover, Doost’s direct answer undercuts his claims that

the directions were ambiguous. He forthrightly replied that

19

there were no affiliated transactions. In a typical fundamental

ambiguity case, the defendant offers an interpretation of the

question where, if his interpretation had been correct, his

answer would have been truthful. See, e.g., United States v.

Farmer, 137 F.3d 1265, 1270 (10th Cir. 1998). Doost does

not—and could not—explain what question he was purportedly

answering truthfully when he claimed there were no affiliated

transactions.6

In sum, Doost fails to demonstrate a reasonable probability

that the exchange leading to this false-statement charge was

fundamentally ambiguous or would have been rendered

fundamentally ambiguous by the introduction of Aldonas’s

email. Insofar as Doost raises a freestanding sufficiency of the

evidence challenge regarding this false statement conviction, it

is similarly without merit. Viewing the evidence presented at

trial in the light most favorable to the government, a rational

jury “could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

318–19 (1979).

6

Doost relies heavily on United States v. Jiang to argue that the court

must favorably consider his potential English deficiencies in

assessing his ability to understand and truthfully respond to

Aldonas’s question about affiliated transactions. 476 F.3d 1026 (9th

Cir. 2007). But Jiang is distinguishable from this case because the

only proof of Jiang’s verbal false statement was “Agent Spelce’s

testimony, based largely on Spelce’s notes, which were recorded

some time after the day of the interview.” Id. at 1029. The Ninth

Circuit found the evidence against Jiang was lacking overall, and it

noted merely as one consideration of many that it could not “properly

evaluate Jiang’s statements without considering the language barrier

that existed between Spelce and Jiang.” Id. at 1030. None of those

facts is present here, where the email is direct documentary evidence

of Doost’s false statement.

20

Doost also challenges counsel’s failure to introduce other

evidence, including an audit that supposedly would have

shown Doost used OPIC money to purchase equipment as he

averred, as well as testimonial evidence corroborating that

claim. Neither alleged failure prejudiced Doost.

To establish ineffective assistance with regard to failure to

admit exculpatory evidence or failure to object to inculpatory

evidence, a defendant must demonstrate “a reasonable

probability that the verdict would have been different” had

counsel made the specified evidentiary decisions. Kimmelman

v. Morrison, 477 U.S. 365, 375 (1986). “We consider each of

[Doost’s] arguments that his trial counsel was ineffective while

keeping in mind that the government’s case against him was,

in a word, overwhelming.” United States v. Udo, 795 F.3d 24,

30 (D.C. Cir. 2015); see also Strickland, 466 U.S. at 695

(Courts “must consider the totality of the evidence before the

judge or jury.”). Doost fails to show he was prejudiced by any

of counsel’s supposed tactical errors with regard to the

evidence, and even “considering them in the aggregate” does

not “change[] the strength of the government’s case.” Udo, 795

F.3d at 33. Much of the evidence Doost wishes had been

introduced would have barely dented the government’s case,

and the witnesses he wishes had been called would also have

been susceptible to damaging cross-examination.

We agree with the district court that Doost cannot establish

prejudice because the evidence counsel failed to introduce was

of such limited probative value that it would not have

weakened the government’s case. See Doost, 2019 WL

1560114, at *4–6; see also Udo, 795 F.3d at 30 (“If the

defendant fails to demonstrate prejudice, we may affirm the

conviction without deciding whether counsel’s performance

was deficient.”).

* * *

21

Each of Doost’s claims of ineffective assistance falters at

either the deficient performance stage, the prejudice stage, or

both. He thus cannot show good cause for his belated

challenges to the indictment, nor does he undermine our

confidence in the verdict because of counsel’s alleged

evidentiary missteps. We affirm his conviction in full.

So ordered.