# Petition for Writ of Certiorari — Dahod v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 953

## Text

\ Supreme Court. U.S
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97-589 OCI - | 1997

No.
OFFICE QF IHE CLERK

In The
SUPREME COURT OF THE UNITED STATES
October Term, 1997

AARIF DAHOD,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH

PETITION FOR WRIT OF CERTIORARI

BRUCE A. ZIMET, ESQUIRE
Counsel For Petitioner

One Financial Plaza

Suite 2612

Fort Lauderdale, FL 33394
(954) 764-7081

i
QUESTIONS PRESENTED FOR REVIEW

1. | Whether the sentencing court's use of the 1993 Sentencing
Guidelines to impose a sentence governed by 1987 Sentencing
Guidelines violates the ex post facto protection of the
Constitution.

2. Whether the sentencing court's dissimilar application of
similar specific offense characteristics among codefendants
constitutes improper disparate sentencing.

3. Whether imposition of sentence enhancements pursuant to
both §2F1.1(b)(2) and §3B1.1B(b) U.S.S.G. constitutes
impermissible double counting.

a

il
LIST OF ALL PARTIES TO THE PROCEEDING
1. Aarif Dahod, Petitioner

2. United States of America, Respondent

iil
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ........... i

BASIS FOR JURISDICTION OF THIS COURT ........ l
CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED IN THE CASE..................... l
CONCISE STATEMENT OF THE CASE ............. 2
1. Basis for Federal Jurisdiction in the Court of First

DG Ae hte C hers en 4
ARGUMENT:

I. THE SENTENCING COURT'S USE OF THE
1993 SENTENCING GUIDELINES TO
IMPOSE A SENTENCE GOVERNED BY 1987
SENTENCING GUIDELINES VIOLATES THE
EX POST FACTO PROTECTION OF THE
| a a 5

I]. THE SENTENCING COURT'S DISSIMILAR
APPLICATION OF SIMILAR SPECIFIC
OFFENSE CHARACTERISTICS AMONG CO-
DEFENDANTS CONSTITUTES IMPROPER
DISPARATE SENTENCING ................ 8

iV

oe One OG

Ill. IMPOSITION OF SENTENCE
ENHANCEMENTS PURSUANT TO BOTH
§2F1.1(b)(2) AND §3B1.1B(b) U.S.S.G.
CONSTITUTES IMPERMISSIBLE DOUBLE

CEE 05 oss cs cabeeonae ace ce 10 |
COO oa eh ee eee 13 |
APPENDICES:

OPINION OF THE UNITED STATES COURT OF /
APPEALS, ELEVENTH CIRCUIT, MARCH 6,
POOF oi Se es Ce CEO A eee App. A

ORDER OF THE UNITED STATES COURT OF
APPEALS, ELEVENTH CIRCUIT, DENYING
PETITIONER'S PETITION FOR REHEARING... App. B

EXCERPT FROM TRIAL TRANSCRIPT .... App. C
EXCERPT FROM TRIAL TRANSCRIPT .... App. D

§1B1.11 - USE OF GUIDELINES MANUAL IN
EFFECT ON DATE OF SENTENCING (Policy

PU Fis ke OS CaN eh rl Oe a nee kas 5 App. E
§2F1.1-FRAUD AND DECEIT ............ App. F )
§2F1.1 - FRAUD AND DECEIT ............ App. G
§3Bl.1- AGGRAVATING ROLE ........... App. H

PETITION FOR REHEARING .............. App. I

Vv

TABLE OF AUTHORITIES
PAGE
CASES
Miller v. Florida, 482 U.S. 423 (1987) ................ 5
Stinson v. United States, 113 S.Ct. 1913 co: , CRIS iaan 12

United States v. Boula, 997 F.2d 263 (7th Cir. 1993) .. 6,11
United States v. Cableigh, 75 F.3d 242 (6th Cir. 1996) ... 12
United States v. Canon, 66 F.3d 1073 (9th Cir. ) ow 6
United States v. Curtis, 934 F.2d 553 (5th Cir. 1991) .... 11

United States v. Godfrey, 25 F.3d 263 (5th Cir.), cert.
denied, _U.S.___ 115 S.Ct. 429, 130 L_Ed.2d 342

fe ae ee re ea ee ee eee 10
United States v. Harotunian, 920 F.2d 1040 (1st Cir. 1990) . . 6
United States v. Kelly, 993 F.2d 702 (9th Cir. | 1]

United States v. Massey, 48 F.3d 1560 (10th Cir.), cert.
denied, _ _ U.S. ___, 115 S.Ct. 429, L.Ed.2d 342

Es ee tax ca eet te ee 10
United States v. Rodriguez, 968 F.2d 130 (2d Cir.), cert.
denied, 113 S.Ct. 139 (1992) .................... 6

United States v. Romano, 970 F.2d 164 (6th Cir. 1992).. 10, 12
United States v. Rappaport, 999 F.2d 57 (2d Cir. 1993) .. 10
United States v. Safeels, 39 F.3d 833 (9th Cir. 1994) ..... 6
United States v. Stevenson, 68 F.3d 1292 (11th Cir. 1995) .. 10

United States v. Tisdale, 7 F.3d 957 (10th Cir. 1991), cert.
denied 114 S.Ct. 1201 (1994)... 2.00... 6

vi
Table of Authorities (continued)
PAGE

United States v. Willis, 997 F.2d 407 (8th Cir. 1993), cert.
denied, _US.___,114S.Ct. 704, 126 L.Ed.2d 670

CIPS) cvcccenescas enleceuapeenene eee 10
United States v. Wong, 3 F.3d 667 (3d Cir. 1993) ....... 10
STATUTES
ESSE 2 sie: | ee ee rer rR ny eh ype 4
ae UA SERED desea che aes Pea poake rea 2
Federal Sentencing Guideline §1B1.11 ............. 1,11
Federal Sentencing Guideline §2F1.1 (1987) ......... 1,6
Federal Sentencing Guideline §2F11 (1993) ........ 1,7,8
Federal Sentencing Guideline §2F1.1(b)(2)(A) ..... 9, 10, 11
Federal Sentencing Guideline §3B].1B(b) ........ 1,10, 11

United States Constitution, Art.I, §9, cl.3; (ex post facto
ORME 6 o.5 5:0 05 ora coeh ehy 0eeate Dee ]

CITATION TO DECISION IN COURT BELOW

Petitioner’s conviction and sentence was affirmed by the
Eleventh Circuit Court of Appeals, in United States v. Logal,
106 F.3d 1547 (11th Cir.1997).

BASIS FOR JURISDICTION OF THIS COURT

This Petition for Writ of Certiorari follows a judgment of
the Eleventh Circuit Court of Appeals affirming Petitioner’s
conviction and sentence. This Court has jurisdiction to
consider this Petition for Writ of Certiorari pursuant to 28
U.S.C.§1254(1).

The Eleventh Circuit Court of Appeals judgment was
entered on March 6, 1997, Petitioner’s application for rehearing
was denied on June 19, 1997. This Court issued an order on
extending until October 1, 1997 Petitioner’s filing of his
Petition for Writ of Certiorari.

CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED IN THE CASE

The Petition for Writ of Certiorari relates to the following
Constitutional Provisions and statutes:

|. United States Constitution, Art. I, §9, cl.3; (ex post facto
clause):

“No Bill of Attainder or ex post facto law shall be passed”.
2. Federal Sentencing Guideline §1B1.11.

3. Federal Sentencing Guideline §2F1.1 (1987).

4. Federal Sentencing Guideline §2F1.1 (1993).

5. Federal Sentencing Guideline §3B1.1B(b).

2

CONCISE STATEMENT OF CASE

Petitioner is currently serving a one hundred and two
month sentence following his conviction for various mail and
security fraud related offenses in the United States District
Court for the Southern District of Florida. Petitioner restricts
this Petition to issues relating to his sentence.

Petitioner had been employed by a Florida Corporation,
Sahlen and Associates, which was involved in various
legitimate security related industries. However, through a
variety of activities, Sahlen, a public company regulated by the
SEC, inflated its worth. The inflated value of Sahlen
influenced its stock trade, as well as its ability to borrow
money.

Although Petitioner was sentenced in 1994, the sentencing
court agreed to utilize the sentencing guidelines in effect in
1989 since those guidelines were clearly more lenient to
Petitioner. Unfortunately, the sentencing court calculated a
sentence identical to the sentence proscribed by the 1993
Sentencing Guidelines which the sentencing court was
precluded from utilizing. Petitioner’s sentence accordingly
increased nearly fifty percent from a range of 51-63 months to
his ultimate sentence of 102 months.

The sentencing court stated that its enhanced sentence was
based upon:

|. the extraordinary amount of the loss and, independently,

2. the sophisticated nature of the offense and the pervasive
role of the defendant.

The 1987 sentencing guidelines set forth an offense level
of “17” for amounts of loss attributed to fraud exceeding five
million dollars. The 1987 sentencing guidelines do not include

3

any higher offense level than the “level 17” relating to loss in
excess of $5 million.

By contrast, the 1993 sentencing guideline sets forth an
offense level of 20 for losses in excess of $5 million. Obvious
calculation reveals a three level increase between the 1987 and
1993 guideline.

In addition to increasing the offense level guideline for
equal amount of loss, the 1993 sentencing guideline also sets
forth offense levels for losses exceeding $5 million. It is clear
that the newly created offense levels are related to and
dependent upon the increased offense levels for lessor amounts
of loss.

Petitioner was found to be responsible for loss in the
' amount of $59 million. The 1987 Guidelines’ highest amount
of loss was “in excess of $5 million”. The 1993 Guidelines
provided for a loss of $59 million. This newly created level
was three levels higher than the offense level for a loss in
excess of $5 million.

However, since the 1993 offense levels had ben set at
higher levels than the 1987 offense levels, a three level increase
from the $5 million dollar offense level resulted in an offense
level of “23”. In contrast, had Petitioner received a three level
increase from the 1987 offense level, his adjusted offense level
would have been “Level 20”.

The sentencing court concluded that it utilized the 1993
Guidelines as “guidance” in determining a higher offense level.
Petitioner submitted that the sentencing court’s use of the 1993
Sentencing Guidelines violated ;the ex post facto clause of the
Constitution. Additionally, Petitioner submitted that even if the
1993 Guidelines could be used for “guidance”, the use
employed by the sentencing court, which included adoption of

4

a three level increase in offense levels, violated the ex post
facto clause.

In addition, Petitioner was calculated to have an offense
level higher than persons whose amount calculation was higher
than Petitioner’s.

Petitioner, who proceeded to trial was calculated to have
an amount of loss of $59 million. Codefendants who entered
plea agreements were found to have losses in excess of the $59
million loss attributed to Petitioner. However, these
codefendants, Davis (loss in excess of $100,000,000) and
Leinwebber (loss in excess of $71 million) did not receive the
six point offense level increase based upon specific offense
characteristics received by Petitioner. No basis existed for this
disparate sentencing treatment received by Petitioner.

Petitioner was also assessed additional points both for his
role in the offense as well as for the sophistication of the
offense. Petitioner challenged the sentencing court’s authority
to “double count” the same activity for two separate offense
enhancements.

1. Basis for Federal Jurisdiction in the Court of First Instance.

Jurisdiction in the United States District Court for the
Southern District of Florida was created pursuant to 18 U.S.C.
§3231 with the return of an indictment alleging offenses against
the laws of the United States.

5

ARGUMENT
I.

THE SENTENCING COURT’S USE OF THE 1993
SENTENCING GUIDELINES TO IMPOSE A
SENTENCE GOVERNED BY 1987 SENTENCING
GUIDELINES, VIOLATES THE EX POST FACTO
PROTECTION OF THE CONSTITUTION

The sentencing court imposed Petitioner’s 102 month
sentence in 1994 by improperly utilizing 1993 sentencing
guidelines. The 1993 sentencing guidelines provided a more
severe penalty than the 1987 sentencing guidelines in effect at
the time the offense was committed. Use of the 1993 more
severe sentencing guidelines violated the ex post facto clause
of the Constitution.

While the federal sentencing guidelines require use of the
guidelines in effect at the time of sentencing, a specific
exception to that requirement arises when the sentence to be
imposed under the guidelines in effect at the time of sentencing
are more severe than the guidelines in effect at the time of the
offense being committed. See Miller v. Florida, 482 U.S. 423
(1987); §IBI.11 U.S.S.G.

The sentencing court recognized that Petitioner’s
guidelines in effect at the time of sentencing were more severe
than the sentencing guidelines in effect at the time of the
offense (1989) and therefore opted to sentence Petitioner
pursuant to the 1987 guidelines.

Unfortunately, the sentencing court’s decision to utilize the
1987 guidelines as opposed to the 1993 guidelines constituted
little more than a legal fiction. The vehicle through which the
fiction was facilitated was the sentencing court’s finding that
the 1987 guidelines did not adequately account for the size of
loss in Petitioner’s case as well as the sophisticated nature of

6

the offense and the pervasive role of the Petitioner in that
offense.

Petitioner does not dispute the finding that application note
ten to the relevant guideline provision §2F1.1 (1987) did allow
the court to upwardly depart for amounts of loss in excess of $5
million. Petitioner, for the purpose of this application, does not
contest that the sentencing court concluded that the amount of
loss was $59 million.

Petitioner does dispute the methodology utilized by the
sentencing court in applying the 1993 guidelines as “guidance”
in determining the amount of enhancement to be applied.

Petitioner would respectfully request that this Court
resolve a split between the Circuits concerning whether
amendments to sentencing guidelines should be utilized as
“guidance” to sentencing courts. See United States v. Canon,
66 F.3d 1073, 1080 (9th Cir. 1995)(disapproving of retroactive
guidance); United States v. Safeels, 39 F.3d 833, 838 (8th Cir.
1994); United States v. Tisdale, 7 F.3d 957, 967-68 (10th Cir.
1991), cert. dénied, 114 S.Ct. 1201 (1994); United States v. Boula,
997 F.2d 263, 267 (7th Cir. 1993); United States v. Rodriguez,
968 F.2d 130 (2d Cir.), cert. denied, 113 S.Ct. 139 (1992);
United States v. Harotunian, 920 F.2d 1040 (ist Cir.
1990)(approving retroactive guidance).

Petitioner respectfully submits that any use of a subsequent
amendment as “guidance” is in reality nothing more than an
unauthorized judicial exception to the ex post facto clause. No
viable test exists to determine whether the subsequent
amendment is being utilized as “guidance” or is in fact being
relied upon as the operative guideline.

Petitioner’s case provides a more compelling example of
why the subsequent guideline amendment should not be relied
upon. The guideline in question, §2F1.] in its 1987 version, did

7

not provide an offense level for amounts of loss substantially
greater than $5 million. It did, however, provide for amounts
of loss greater than $5 million with an offense level of
“seventeen”. In contrast, the 1993 amendment to §2F1.1
provided an offense level of “twenty” for losses in excess of $5
million. In addition, the 1993 amendment provided a three
level offense level increase for amounts of loss in excess of $40
million. Consequently, a person sentenced under the 1993
amendment with a loss amount of $59 million would have an
offense level of twenty-three.

A sentencing court that truly utilized the 1993 amendment
to §2F1.1 to determine an offense level for amounts greatly in
excess of $5 million would observe that the amendment
provided a three level increase in the offense level for the
proscribed level for a $5 million loss. In Petitioner’s case, his
offense level would increase three levels from his 1987 offense
level of twenty to an offense level of twenty-three.

However, if the sentencing court merely adopted the 1993
amendment and rubber stamped to the offense level set forth in
1993 without regard to the fact that the entire offense leve! had
been increased in 1993 from the 1987 levels, the 1993 level
would not be utilized as “guidance” but in fact, be substituted
for the 1987 guideline.

In Petitioner’s case, the sentencing court impermissibly
substituted the 1993 sentencing guideline for the 1987 guideline.
Even should this Court permit subsequent guideline
amendments to be used for “guidance”; the sentencing court in
the instant case traveled far beyond even the most acceptable
level of guidance.

Petitioner respectfully requests that this Court resolve the
split among the circuits and determine that subsequent
increases in offense levels created by Sentencing Guidelines
amendments may not be utilized by sentencing courts as

8

“guidance” in imposing sentences. In the alternative, Petitioner
requests that this Court conclude the subsequent amendments
may only be utilized to determine the quantity of levels
determined to apply for undetermined levels of conduct.

Il.

THE SENTENCING COURT’S DISSIMILAR
APPLICATION OF SIMILAR SPECIFIC
OFFENSE CHARACTERISTICS AMONG
IMPROPER CO-DEFENDANTS CONSTITUTES
DISPARATE SENTENCING

Petitioner’s sentencing was governed by the provisions of
§2F1.1 U.S.S.G. The sentencing guideline section identifies
“specific offense characteristics” which are based upon the
amount of loss suffered by the fraud victim. While the amount
of loss attributed to any particular defendant in a multiple
defendant case may logically differ, similar amounts of loss
should not result in dissimilar specific offense characteristics.
Unfortunately, the sentencing judge implemented among co-
defendants dissimilar offense characteristics which ultimately
resulted in impermissible disparate sentences.

Petitioner’s “amount of loss” was calculated to be in the
amount of $59 million. The sentencing court found an offense
level of twenty-three based upon a specific offense
characteristic of “17”. However, the record in the sentencing
court reveals that despite the fact that at least three co-
defendants had amounts of loss equal to or greater than
Dahod’s, the sentencing court found specific offense
characteristics for those codefendants to be Jess than Dahod’s.

Application note 10 to the 1987 guideline
provided that: The adjustments for loss do not
distinguish frauds involving losses greater than
$5,000,000. Departure above the applicable guideline

9

may be warranted if the loss substantially exceeds
that amount.

(Emphasis added).

The Application Note does not identify the activity of the
defendant as a basis to depart, but rather unequivocally
identifies the amount of loss as the only basis for departure.
Accordingly, it should be axiomatic that codefendants with
similar amounts of loss should not receive dissimilar specific
offense characteristics.

That Petitioner suffered this disparity, to wit: an extra six
levels on the offense level compared to the offense levels of
codefendants is improper and mandates Petitioner’s
resentencing in a manner consistent with that of his co-
defendants.

Petitioner recognizes that a variety of other offense
characteristics or individual roles may influence the ultimate
adjusted offense level. However, no legitimate or acceptable
argument can support dissimilar specific offense characteristics
based upon similar losses.

Petitioner is particularly concerned that the only
discernable difference between himself and his codefendants
who did not receive additional specific offense characteristics
increases was that Petitioner exercised his right to trial.

Allowing disparities which may be based upon the exercise
of Constitutional rights should be unacceptable.

Petitioner requests that this Court determine that
application of the specific offense characteristics of §2F1.1(b)
require that whatever factual finding concerning the amount of
loss is made relating to an individual defendant that the
sentencing court equally apply said offense characteristics.

10

Since Petitioner has been victimized with an offense level
six points higher than codefendants found to have an amount of
loss in excess of that of Petitioner, he requests that his case be
remanded for resentencing in a manner consistent to that of his
co-defendants.

Il.

IMPOSITION OF SENTENCE ENHANCEMENTS
PURSUANT TO BOTH §2FLI(b)(2) AND
§3BLIB(b) U.S.S.G. CONSTITUTES
IMPERMISSIBLE DOUBLE COUNTING

Petitioner’s sentence included cumulative enhancements
based upon two sentencing guideline provisions, §2F1.1(b)(2)
(more than minimal planning) and §3B1.1B(b) (role as manager
or supervisor). These enhancements constitute impermissible
double counting. Petitioner’s objection to said double counting
was improperly overruled.

A clear split exists in the circuits concerning the specific
issue. See Untied States v. Romano, 970 F.2d 164, 167 (6th Cir.
1992) (considerations of lenity and due process forbid the
cumulative application of the two guideline sections in the
absence of a clear statement permitting such use); United States
v. Stevenson, 68 F.3d 1292 (11th Cir. 1995)(double counsng of
the provisions permitted unless specifically prohibited by
sentencing guidelines). Stevenson relied upon the following
decisions from other circuits supporting its conclusion: United
States v. Massey, 48 F.3d 1560, 1570 (10th Cir.), cert. denied,
__US.___, IIS S.Ct. 2628, 132 L.Ed.2d 868 (1995); United
States v. Godfrey, 25 F.3d 263, 264 (Sth Cir.), cert. denied,
__US. __, 115 S.Ct. 429, 130 L.Ed.2d 342 (1994); United
States v. Wong, 3 F.3d 667, 670-72 (3d Cir. 1993); United
States v. Rappaport, 999 F.2d 57, 60-61 (2d Cir. 1993); United
States v. Willis, 997 F.2d 407, 418-19 (8th Cir. 1993), cert.
denied, _US. ___, ll4 S.Ct. 704, 126 L.Ed.2d 670 (1994);

ee ee ee ee

1]

United States v. Kelly, 993 F.2d 702, 704-05 (9th Cir. 1993);
United States v. Curtis, 934 F.2d 553, 556 (Sth Cir. 1991);
United States v. Boula, 932 F.2d 651, 654-55 (7th Cir. 1991).

Petitioner received, without objection, a two level increase
based upon “more than minimal planning” U.S.S.G.
§2F1.1(b)(2)(A). Petitioner received, over objection, a three
level increase for his role as a manager or supervisor of more
than five persons. The sentencing court rejected the
Government’s argument that Petitioner receive a four point
increase as an organizer or leader.

Petitioner submits that the same conduct which formulated
the “more than minimal planning” enhancement was utilized to
designate Petitioner as a “manager or supervisor”. Simply
stated, being a manager or supervisor of five or more persons
necessitates more than minimal planning.

Petitioner respectfully submits that the failure of the 1987
Sentencing Guidelines to specifically allow for the double
counting of §§2F1.1(b)(2) and 3B1.1(b), requires that only one of
the two enhancements be permitted. Respondent requests that
this Court adopt the Romano rationale and conclude that the
absence of guideline authorization precludes double counting
as violative of due process and the rule of lenity in criminal
cases.

Finally, Petitioner recognizes the relative narrow
application of this issue. Effective November |, 1993, the
Application Notes to §1BI.1 U.S.S.G. was amended:

“Absent an instruction to the contrary, the
adjustments from different guideline sections are
applied cumulatively (added together). For example,
the adjustments from §2F1.1(b)(2)(more than minimal
planning) and §3Bl.l(aggravating role) are applied
cumulatively.”.

12

This amendment clarifies the Commission’s intent
that, absent an instruction to the contrary, adjustments
from different guideline sections are to be applied
cumulatively. The effective date of this amendment
is November 1, 1993.

Indeed, the Sixth Circuit refused to follow Romano in
sentencing after November, 1993 which presumably were based
upon 1993 guidelines. United States v. Cableigh, 75 F.3d 242
(6th Cir. 1996).

While Petitioner was sentenced subsequent to the 1993
amendment, it is without question that he was sentenced
pursuant to the 1987 Guidelines. Additionally, although the
language to the Amendment to §1BI.1 is couched in terms of
“clarification”, the effect of the Amendment subjected
Petitioner to a greater sentence than the 1987 guidelines as
interpreted by Romano. Further, given the binding nature of
commentary amendments, see Stinson v. United States, 113
S.Ct. 1913 (1993), application of the Amendment to Petitioner
would violate the ex post facto clause.

Petitioner therefore requests that his case be remanded for
resentencing with instructions that Petitioner not receive the
“double counting” described herein.

13

CONCLUSION

Wherefore, based upon the foregoing authority, Petition
respectfully requests that the Honorable Court accept
jurisdiction over this matter, grant this Petition for Writ of
Certiorari, address the questions presented herein, and reverse
the judgment of the Eleventh Circuit Court of Appeals
affirming Petitioner’s sentence.

Respectfully submitted,

BRUCE A. ZIMET, ESQUIRE

APPENDICES

s

Cg ee, 2
(ct -) m RS

i
APPENDICES

See the record excerpt provided on appeal from the U.S.
District Court for copies of pleadings there.

OPINION OF THE UNITED STATES COURT OF
APPEALS, ELEVENTH CIRCUIT, MARCH 6,
ag a ne ne ee App. A

ORDER OF THE UNITED STATES COURT OF
APPEALS, ELEVENTH CIRCUIT, DENYING
PETTTIONER’S PETITION FOR REHEARING . App. B

EXCERPT FROM TRIAL TRANSCRIPT .... App. C
EXCERPT FROM TRIAL TRANSCRIPT .... App. D

§1B1.11 - USE-OF GUIDELINES MANUAL IN
EFFECT ON DATE OF SENTENCING (Policy

a ae Per Peeper App. E
§2F1.1- FRAUD AND DECEIT ............ App. F
§2F1.1- FRAUD AND DECEIT ............ App. G
§3B1.1- AGGRAVATING ROLE........... App. H

PETITION FOR REHEARING .............. App. I

la

APPENDIX A

UNITED STATES of America,
Plaintiff-Appellee,

V.

Nelson LOGAL, Aarid Dahod, a.k.a. Aarid
Mansur Dahodwala, John Kuczek,
Defendants-Appellants.

No. 94-4748
United States Court of Appeals,
Eleventh Circuit,

March 6, 1997.

Various defendants were convicted of mail and securities
fraud violations, and were ordered to pay restitution, in the
United States District Court for the Southern District of
Florida, No. 93-6014 CR-SM, Stanley Marcus, J. Defendants
appealed. Following one defendant’s death by suicide, counsel
filed “suggestion of death” with Court of Appeals, asking that
appeal be dismissed as moot and case be returned to District
Court with instructions to dismiss indictment. The Court of
Appeals, Dubina, Circuit Judge, held that: (1) as to surviving
defendants, trial court could consider amendments to
Sentencing Guidelines adopted after offenses in question were
completed, in determining suitable degree of upward departure
from Guidelines in effect at time of offenses, and (2) as to
deceased defendant conviction would be vacated, even through
restitution was involved.

Affirmed in part; vacated in part and remanded.

2a

Cohill, Senior District Judge, sitting by designation,
concurred in part and dissented in part and filed opinion.

1. Criminal Law - 1239

Trial court could consider amendments to Sentencing
Guidelines effective after date offense was completed in
determining degree of upward departure from Sentencing
Guidelines applicable to defendant. U.S.S.G. §1B1.1 et seq.,
18 U.S.C.A.

2. Criminal Law - 303.50, 1208.4(2)

Defendant’s conviction would be vacated, following his
death by suicide, even though part of sentence involved
payment of restitution under Victim and Witness Protection
Act; restitution requirement was penal in nature rather than
compensatory and there were civil actions which could prevent
estate of defendant from receiving windfall. 18 U.S.C.A.
§3663.

Appeal from the United States District Court for the
Southern District of Florida.

Before HATCHETT, Chief Judge, DUBINA, Circuit
Judge, and COHILL’ ,Senior District Judge.

DUBINA, Circuit Judge.

“Honorable Maurice b. Cohill, Jr., Senior U.S. District Judge for the
Western District of Pennsylvania, sitting be designation

3a

I. Statement of the Case
1. Factual History.

In 1981, Howard F. Sahlen, Jr. (“Sahlen”) founded a
private investigation and security firm called Sahlen &
Associates, Inc. (“SAI”). Sahlen was chairman and chief
executive officer of the company through April of 1989. In
1984, SAI became a publicly traded company with its
headquarters in Atlanta, Georgia. !

As a publicly traded corporation, SAI was required to file
a registration statement with the Securities and Exchange
Commission (“SEC”) detailing certain information for use by
potential investors. In addition, SAI was required to file
quarterly and annual reports containing financial information
about the corporation’s worth and profit levels. Financial
statements included in SEC filings must be audited, and
between 1985 and 1989 SAI’s annual reports were audited by
the accounting firm of Peat Marwick or its predecessor, Main
Hurdman.

Between 1983 and 1989, SAI’s operation grew from one
office with 10 to 15 employees to about 100 offices with
approximately 12,000 employees, and the company reported a
tremendous increase in revenues. Unfortunately, SAI achieved
this growth by making public stock offerings and obtaining
bank loans through the use of false financial documents. SAI
employees and others -- including Sahlen, Nelson Logal
(“Loga!”), Aarif Dahod (“Dahod”), and John Kuczek
(“Kuczek”) -- used various means to misrepresent SAI’s
financial condition, including check kiting, falsifying revenue
figures in financial statements, and creating false documents to
support the inflated revenue figures. Sahlen, Logal, Dahod,

' The headquarters were later relocated to Deerfield Beach, Florida.

4a

and Kuczek also devised and implemented various schemes to
conceal the fact that they had inflated and fabricated SAI’s
revenue figures.

One of Sahlen’s schemes to inflate revenue figures
involved the generation of false invoices and investigative files
for clients who were closely associated with Sahlen. SAI listed
these accounts, which were never paid, under the heading of
“special accounts”, P.J. Management --whose president,
Logal, was a childhood friend of Sahlen -- enjoyed one of these
“special accounts” with SAI. Kuczek & Associates, an
insurance brokerage company owned by Kuczek, also had a
“special account” during the 1987 fiscal year. Dahod was
actively involved in the generation of false investigative files
to authenticate the invoices, even going so far as to create a
computer program to facilitate the generation of false
documentation on a computer he called “Betsy”.

In order to disguise the financial instability of SAI, Sahlen
devised a check kiting scheme to give the illusion that SAI had
the funds necessary to pay operating expenses. Logal, who was
operating his own business in Ohio called N.H. Logal, assisted
Sahlen in the check kiting scheme by helping to deposit checks
with full knowledge that the checks were backed by insufficient
funds. In another scheme to conceal SAI’s true fiscal status,
SAI reported non-existent revenue in a category called “work
in progress”. 2

The reporting of false revenue escalated substantially with
each quarterly report filed by SAI, ultimately growing to
$7,124,073. The house of cards began to fall when auditors
from Peat Marwick started expressing concern about the large

* “Work in progress” is an accounting device used to to report
anticipated revenues from partially completed work.

5a

amount of aging accounts receivable on SAI’s books. Peat
Marwick told Sahlen that unless SAI began showing significant
collections activities, the accounts receivable figures would
have to be discounted, which would result in the reporting of
much smaller income and revenue figures. To cover up the
false revenue reported as accounts receivable, the defendants
created additional schemes.

By the end of 1988, the amount of false revenue had grown
to millions of dollars,, and most of the uncollected receivables
were fictitious. In late March of 1989, Sahlen learned that the
SEC was investigating SAI’s methods of reporting revenue.
Sahlen also learned that Peat Marwick auditors planned to visit
SAI’s Miami, Florida, and Newark, New Jersey, field offices
to examine files. Upon completion of its investigation, the
SEC sought federal indictments against Sahlen, Logal, Dahod,
and Kuczek.

2. Procedural History.

A federal grand jury in the Southern District of Florida
returned a 29-count superseding indictment charging Logal,
Dahod, and Kuczek, as well as Sahlen, with various violations
of federal law.? All four defendants were charged in count |
with conspiring to defraud the SEC and to commit securities
fraud, bank fraud, and mail fraud, in violation of 18 U.S.C.
§371, and in count 28 with filing a false registration statement
with the SEC on or about March 14, 1989, in violation of 15
U.S.C. §§78m and 78ff(a) and 18 U.S.C. §2. Logal, Dahod, and
Sahlen were also charged with seven counts of securities fraud,
in violation of 15 U.S.C. §§78j(b) and 78ff(a), 17 C.F.R.
§240.10b-5 (Rule 10b-5),and 18 U.S.C. §2 (counts 2-8); eight

> Additional defendants Theordore Leinwebber, Paula Firebaugh, and
Tony Davis pled guilty before the return of the superseding indictment and
testified for the government at trial.

6a

counts of mail fraud, in violation of 18 U.S.C. §§1341 and 2
(counts 9-16); six counts of filing false reports and statements
with the SEC, in violation of 15 U.S.C> §§78m adj 78ffa) and
18 U.S.C> §2 (counts 22-27); and one count of bank fraud, in
violation of 18 U.S>C. §§1344 and 2 (count 29). Logal was
charged with one additional count of dank fraud (count 17), and
Sahlen was charged with five additional counts of bank fraud
(counts 17-21).

Sahlen pled guilty to all counts of the indictment, but
Logal, Dahod and Kuczek proceeded to trial. The district court
granted a motion for judgment of acquittal as to Dahod and
Logal on count 9. The jury found Logal guilty of counts 1-8,
10-16, 22-25, and 29, and not guilty of counts 17 and 26-28.
The jury found Dahod guilty of counts 1-8, 10-16, and 24-29,
and not guilty of counts 22 and 23. The jury found Kuczek
guilty of count 1 and not guilty of count 28.

Logal was sentenced to 60 months imprisonment as to
count | and to 27 months of imprisonment as to the remaining
counts, with the 27-month sentence to run consecutively to the
60-month sentence, for a total of 87 months of imprisonment.
The court also ordered Logal to pay restitution totaling
$59,338,184. Dahod was sentenced to a total of 144 months
imprisonment and ordered to pay restitution inn the amount of
$59,338,184. | Kuczek was sentenced to 37 months
imprisonment and a 3-year term of supervised release and
ordered to pay a fine of $4,000 adj restitution totaling
$21,586,487. Logal and Dahod are currently incarcerated.

Kuczek is not incarcerated, however, because he
committed suicide the day before he was to begin serving his
term of imprisonment. Following Kuczek’s suicide, his
counsel filed a “suggestion of death” with this court and asked
this court to dismiss Kuczek’s appeal as moot, to vacate
Kuczek’s sentence and conviction in toto, and to remana the

7a

case to the district court with instructions to dismiss the
indictment. This court ordered that Kuczek’s motions be
carried with the case and instructed Kuczek’s counsel to
address in his brief the effect of Kuczek’s suicide on the
restitution order imposed by the district court. In response to
a motion for clarification, we specified that only issues relating
to the effect of Kuczek’s death on the restitution order should
be addressed in Kuczek’s appellate brief.‘ In his brief, counsel
for kuczek requests that he be allowed to file a brief presenting
further challenges to the restitution order if this court
determines that it has jurisdiction to entertain the merits of the

appeal.
II. Issues Presented

1. Whether the district court abused its discretion by denying
Logal’s motions for severance from Kuczek.

2. Whether Dahod’s allegations of prosecutorial misconduct
warrant reversal of his and Logal’s convictions.

3. Whether the district court abused its discretion by
admitting challenged evidence.

4. Whether the district court abused its discretion by
declining to give requested jury instructions.

5. Whether the district court abused its discretion in framing
its response to a jury question.

6. Whether the district court properly sentenced Dahod and
Logal.

7. Whether the restitution component of Kuczek’s sentence
survives his death.

* Counsel for Kuczek complied fully with this court’s directives.

8a

8. Whether this court should dismiss Kuczek’s appeal as
moot, vacate his conviction and sentence, and remand this
matter to the district court to dismiss the indictment.

Ill. Standards of Review

Regarding all but the last three issues presented in this
appeal, we conclude that the defendants’ arguments are
meritless. Accordingly, we affirm the defendants’ convictions
without further discussion.’ We also affirm without discussion
all of the sentencing issues raised by Dahod and Logal, save for
their contention that the district court, in imposing their
sentences, violated the Ex Post Facto Clause of the Constitution
by considering amendments to the United States Sentencing
Guidelines (“U.S.S.G.” or “guidelines”) that went into effect
after Dahod and Logal’s crimes had been completed. A
defendant’s claim that his or her sentence was imposed in
violation of the Ex Post Facto Clause presents a question of
law, and we review questions of law de novo. See, e.g., United
States v. Hooshmand, 931 F.2d 725, 727 (11th Cir. 1991). The
remaining issues--viz, whether the restitution component of
Kuczek’s sentence survives hid death, and whether this court
should dismiss the appeal as moot, vacate Kuczek’s conviction
and sentence, and remand to the district court for dismissal of
the indictment—also present questions of law subject to de novo
review. See generally, United States v. Asset, 990 F.2d 208
(Sth Cir. 1993); United States v. Dudley, 739 F.2d 175 (4th Cir.
1984); United States v. Schumann, 861 F.2d 1234 (11th Cir.
1988).

> See 11th Circuit Rule 36-1.

ee ee ee eS ee Ty Se ae ee a ht it I Te PE ee ee, ee ae <<

9a

IV. Discussion
l. Guidelines Issue.

[1] Although Dahod and Logal were sentenced in 1994,
they were sentenced pursuant to the prel989 guidelines,
because their offenses had ended prior to the enactment of the
1989 amendments and because those amendments included
increases int he offense levels for fraud cases. See Miller v.
Florida, 482 U.S. 423, 435-36, 107 S.Ct. 2446, 2454, 96
L.Ed.2d 351 (1987). Both Dahod and logal acknowledge that
the district court imposed sentence on them pursuant to the pre-
1989 version of U.S.S.G. §2F1.1. Nevertheless, they argue that
the district court violated the Ex Post Facto Clause by looking
to the 1989 amendment to §2F1.1 for guidance in determining
the degree of their upward sentencing departures. Because the
court indisputably used the pre-1989 guidelines to sentence
Dahod and Logal, we conclude that no Ex Post Facto Clause
violation occurred. Moreover, we note that six of our sister
circuits have already approved the practice of looking at
guidelines amendments that post-date applicable guidelines for
the purpose of determining the appropriate degrees of upward
sentencing departures. See, United States v. Harotunian, 920
F.2d 1040, 1046 (1st Cir. 1990)(approving use of amended
guideline to guide upward departure); United States v.
Rodriguez, 968 F.2d 130, 140 (2d Cir.) (same) cert. denied, 506
U.S. 847, 113 S.Ct. 140, 121 L.Ed.2d 92 (1992); United States
v. Bachynsky, 949 F.2d 722, 734-35 (5th Cir. 1991) (approving
district court’s consideration of proposed amendments to §2F1.1
in determining level of upward departure), cert. denied, 506
U.S. 850, 113 S.Ct. 150, 121 L.Ed.2d 101 (1992); United States
v. Boula, 997 F.2d 263, 267 (7th Cir. 1993)(approving district
court’s consideration of amended §2F1.1 to fashion upward
departure and rejecting argument that doing so constituted
application of the amended guideline); United States v.

10a

Saffeels, 39 F.3d 833, 838 (8th Cir. 1994)(holding that
“subsequent guidelines can be a useful touchstone in making
the determinations of reasonableness called for in upward
departure cases”); United States v. Tisdale, 7 F.3d 957, 967-68
(10th Cir. 1993)(holding that use of amended guideline to
guide upward departure is permissible so long as the district
court understands that the amended guideline provision is not
controlling), cert denied, 510 U.S. 1169, 114 S.Ct. 1201, 127
L.Ed.2d 549 (1994). But see United States v. Canon, 66 F.3d
1073, 1080 (9th Cir. 1995)(holding that district court erred in
referring to amended guideline to determine reasonable amount
of upward departure). We choose to adopt the majority view
of our sister circuits. Accordingly, we affirm Dahod and
logal’s sentences.

2. Restitution.

[2] Counsel for Kuczek asserts that the restitution order
entered by the district court cannot survive Kuczek’s suicide.
Kuczek was sentenced to serve a 37 month term of
imprisonment and a 3-year term of supervised release.
Additionally, Kuczek was ordered to pay a fine of $4,000 and
restitution totaling $21,586,487, pursuant to the Victim and
Witness Protection Act (“VWPA”), 18 U.S.C. §3663. Kuczek
filed a notice of appeal, but the day before he was to begin
serving his sentence of incarceration, he committed suicide.
Kuczek’s appellate attorney argues that his client’s death
rendered the entire conviction and sentence, including the
restitution order, void ab initio, and that the restitution order is
therefore without effect.

This circuit has adopted the general rule that the death of
a defendant during the pendency of his direct appeal renders his
conviction and sentence void ab initio, i.e., it is as if the
defendant had never been indicted and convicted. See, United

lla

States v. Pauline, 625 F.2d 684, 685 (Sth Cir. 1980);° United
States v. Schumann, 861 F.2d 1234, 1236 (11th Cir. 1988).
However, two of our sister circuits have recognized an
exception to the general rule of abatement ab initio in cases in
which a criminal sentence includes an order that the defendant
pay restitution to the victims of his crimes. See United States
v. Dudley, 739 F.2d 175, 177 (4th Cir. 1984); United States v.
Asset, 990 F.2d 208 (Sth Cir. 1993). In Dudley, the Fourth
Circuit premised its holding on the assumption that a restitution
order is compensatory in nature. That assumption is Clearly at
odds with out holding in United States v. Johnson, 983 F.2d
216, 220 (11th Cir. 1993), that “though restitution resembles a
judgment ‘for the benefit of’ a victim, it is penal, rather than
compensatory.” Furthermore, any implication that restitution
resembles a civil judgment is undermined in this court’s
opinion in United States v. Satterfield, 743 F.2d 827, 836 (11th
Cir. 1984) cert. denied, 471 U.S. 1117, 105 S.Ct.. 2362, 86
L.Ed.2d 262 (1985).

The Fifth Circuit’s opinion in United States v. Asset, 990
F.2d 208 (Sth Cir. 1993), is also distinguishable. Asset held
only that an abatement did not disturb a voluntary restitution
payment made prior to the defendant’s death. Jd. at 214. This
holding is in accordance with our decision in Schumann where
we amended Pauline to hold that only fines not yet collected at
the time of death are abated. Schumann, 861 F.2d at 1236.

If we were to allow the restitution order to survive Kuczek,
a statutory problem would also arise. Title 18 U.S.C.
§3663(a)(1) states that before the court can impose a restitution
order, a defendant must first be convicted of a crime. Under

* In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)
(en banc), this court adopted as binding precedent all decisions of the
former Fifth Circuit handed down prior to October 1, 1981.

12a

the doctrine of abatement ab initio, however, the defendant
“stands as if he never had never been indicted or convicted.”
Schumann, 861 F.2d at 1237. The absence of a conviction
precludes imposition of the restitution order against Kuczek or
his estate pursuant to §3663.

Moreover, a fundamental principle of our jurisprudence
from which the abatement principle is derived is that a criminal
conviction is not final until resolution of the defendant’s appeal
as a matter of right. See Griffin v. Illinois, 351 U.S. 12, 18, 76
S.Ct. 585, 590, 100 L.Ed. 891 (1956). AS the Seventh Circuit
has stated, “when an appeal has been taken from a criminal
conviction to the court of appeals and death has deprived the
accused of his right to our decision, the interests of justice
ordinarily require that he not stand convicted without resolution
of the merits of his appeal. . . .” United States v. Moehlenkamp,
557 F.2d 126, 128 (7th Cir. 1977). In the present case, Kuczek
appealed both the conviction and the restitution order with the
expectation that his appeal would result in a reversal. To
uphold the restitution order against Kuczek, who has been
denied the opportunity to properly contest his conviction,
violates the finality principle.

Concerning the argument that the heirs of Kuczek’s estate
may receive a windfall, nothing precludes the victims from
bringing a separate civil action to prevent any improper benefit
to Kuczek’s estate. Accordingly, we grant Kuczek’s motion
requesting that we vacate his conviction adj sentence, remand
the case to the district court, and instruct the district court to
dismiss the indictment.

AFFIRMED in part, VACATED in part, and
REMANDED for further proceedings consistent with this
opinion.

Fn ee et ae

SRT sae) te ASP Re eal as gt i SD be ere PROT,

13a

COHILL, Senior District Judge, concurring in part and
dissenting in part.

I respectfully dissent from that portion of the opinion in
which a majority of the panel holds that Mr. Kuczek’s death by
suicide, before his appeal was decided, necessitates the
abatement of the restitution order. While United States v.
Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977), states that a
conviction can not stand where “death has deprived the accused
of his right to appeal our decision,” in this case the accused
deprived himself of that right by his own hand. This situation
is more analogous to the scenario in which the appellant in a
criminal case becomes a fugitive; in such a case, his appeal is
lost. Molinaro v. New Jersey, 396 U.S. 365, 365-366, 90 S.Ct.
498, 498-499, 24 L.Ed.2d 586 (1970). I believe that a narrow
exception should be carved out of the general abatement rule
where an appellant takes his own life.

I join in the opinion in all other respects.

l4a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 94-4748

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

NELSON LOGAL; AARIF DAHOD,a.k.a. Aarid Mansur
Dahodwala; JOHN KUCZEK,
Defendants-Appellants.

On Appeal from the United States District
Court for the
Southern District of Florida

ON PETITION FOR REHEARING

BEFORE: HATCHETT, Chief Judge, DUBINA, Circuit Judge,
and COHILL’, Senior District Judge.

PER CURIAM:

The petition for rehearing filed by the Appellant, Aarif
Dahod is denied.

“Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the
Western District of Pennsylvania, sitting be designation

lSa

The petition for rehearing filed by the Appellee, United
States of America is denied.

ENTERED FOR THE COURT:
UNITED STATES CIRCUIT JUDGE

l6a

APPENDIX C

THE COURT: If you and your client would approach the
podium.

As I said earlier, this Court has had the opportunity to
think a great deal about the case. I presided over the trial that
lasted from November well into February. We had extensive
hearings as to the nature and extent of the loss, sentencing
hearings a couple of weeks ago, and continued it to today.

After considering the statements by all of the parties,
having reviewed the presentence investigative report, and based
upon the large amount of the loss involved, extraordinary
amount of loss involved in this case, and, indeed,
independently based upon the sophisticated nature of the
offense and the pervasive role the defendant played in that
regard, I believe that a sentence that departs above the
applicable guidelines range is appropriate in this case.

The defendant argues first that no departure is appropriate.

Second, that if a departure is appropriate and to the extent
that it’s calculated or grounded in the loss, that it ought to be a
three-level increase.

I do not share that view.

The loss chart for a 2F 1.1 for fraud and deceit calculated
at a loss in excess of $5,000,000 is meriting an ll-point increase
int he defendant’s offense level.

The defendant argues that a 14-point increase at most is
appropriate calculating the loss between $5,000,000 and
$10,000,000, therefore meriting the 14-point increase. This 3-
point difference contained in the $5,000,000 fraud level should
be taken out of the Court’s calculus of Dahod’s offense level

the defendant contends because otherwise it would constitute

EEE ae

17a

impermissible retroactive application of harsh or subsequent
guideline provisions.

I do not agree. I begin by observing that application note
10 of the 1987 Guidelines specifically says the Court can
depart upward for amounts of loss greatly in excess of
$5,000,000 even if the subsequent guidelines did not offer
additional guidance. And they do offer guidance to the Court
as to the amount to increase the offense level for a $59,000,000
loss. We would clearly depart the six levels based upon this
Court’s specific finding as to the amount and extent, the
seriousness of the loss. I made specific findings as to Sahlen,
Logal, and now Dahod as to the nature and extent of the loss
and the fraud, and it fully justifies a six-level upward departure
in this case based simply on loss.

I have taken into account all of the factors that the parties
have asked me to look at, but I believe that a six-level departure
based upon loss alone is altogether warranted in this case. We
are talking here about a loss that I have calculated at
$59,338,184. It is greatly beyond the $5,000,000 figure, which
is the top of the figure used in the loss chart for the 1987
Guidelines.

An altogether independent basis for upward departure here
would be the sophisticated nature of the offense and the
pervasive role that the defendant played in this scheme, and I
think it is fair and accurate to describe his role as being
pervasive and to define the scheme as being extraordinarily
sophisticated in nature.

If the defendant had been sentenced under the 1993
Guideline manual, 17 levels would have been added to the base
offense level because the loss was, as this Court has found, at
least $59,000,000.

18a

AS I said, I think there are two wholly independent bases
for an upward departure, either of which would be more than
sufficient to satisfy me. I think they are both evidence in this
case. First is the extraordinarily large amount of loss here,
$59,000,000, adj second is, as I said, the extraordinarily
sophisticated nature of the offense and the defendant’s
pervasive role in the offense.

If, indeed, this Court were to look at the 1993 Guideline
manual for guidance -- and I underscore it is for guidance -- 17
levels would have been added to the base offense level because
the loss was at least $59,000,000. That would have resulted in
a total offense level of 30, which would have a guideline
imprisonment range of 97 to 121 months.

I look to that for guidance, as I said. I will impose a
sentence within, but at the lower end, although not at the
bottom of that range.

Furthermore, it is the finding of the Court that the
defendant is not able to pay a fine. Accordingly, none shall be
imposed. The defendant does, however, have a compelling
responsibility to pay restitution to the victims of the offense
and will be required to do so.

Pursuant to the Sentencing Reform Act of 1984, it is the
judgment of the Court that the defendant, Aarif Dahod, is
hereby committed to the custody of the Bureau of Prisons to be
imprisoned for a term of 102 months. That breaks down as
follows: This term consists of 60 months on each of counts 1
through 8, counts 10 through 16 and counts 24 through 28, each
to be served concurrently with the other.

Additionally, this term consists of 42 months on count 29
to be served consecutively to the terms imposed on counts 1
through 8, 10 through 16 and 24 through 28.

19a

It is further ordered and adjudged that the defendant shall
pay restitution in the amount of $59,338,184 jointly and
severally with all of the other co-defendants. No further
payment shall be required after the sum of the amounts paid by
all of the defendants has fully covered the financial loss
sustained by the victims.

Upon release from imprisonment the defendant shall be
placed on supervised release for a term of three years. While
on supervised release the defendant shall not commit another
Federal, state or local crime and shall comply fully with the
standard conditions adopted by the Court.

The defendant shall be required, as well, to provide full
financial disclosure to the probation officer as requested. The
defendant shall not be employed in the securities or
investigative field if this employment involves his preparing
billing statements or time and expense logs for customers. The
defendant shall make full disclosure of the instant offense to
any subsequent employer.

It is further ordered and adjudged that the defendant shall
pay to the United States a special assessment in the amount of
$1,050.

Now that sentence has been imposed, counsel, does
counsel or the defendant have any objection to any finding of
fact, conclusion of law or manner by which sentence waas
pronounced?

Mr. Zimet.

(Trial Transcript 49-54).

20a

APPENDIX D

THE COURT: Let me give you my thought on that.
Essentially what the defendant is arguing here is that by
sentencing him under both 2F1.1(b)(2) for more than minimal
planning and 3B1.1, adjustment for role for being an organizer,
leader, manager or supervisor, amounts to impermissible
double counting and, therefore, is proscribed.

The support for the Dahod position is found in United
States versus Romano, a Sixth Circuit case cited by Mr. Zimet
at 970 F.2d 164, Sixth Circuit, 1992.

As best I can tell, the Eleventh Circuit has not yet squarely
ruled on precisely this issue. Every other circuit that has ruled
on it, however, has rejected the position taken in Romano, and,
indeed, even the Sixth Circuit has cut back on the position to
some extent there.

I cite to you United States versus Curtis, a Fourth Circuit
case, 934 F.2d 553, Fourth Circuit, 1991; United States versus
Godfrey, brand new opinion out of the Fifth Circuit -- it’s not
reported yet in F.3d -- it’s 1994 WL-279830. that’s in the
Westlaw, Fifth Circuit, June the 24th, 1994, an opinion
rendered by Judge Wisdom. The third would be an Eighth
Circuit case, U.S. v. Willis, 997 F.2d 407 at 418 and 419
decided in 1993.

The three Courts that I have cited have directly disagreed
with the contention that sentencing a defendant pursuant to the
two sentencing provisions constitutes double counting.

The logic behind the position that these circuits have taken
is essentially those two provisions constitute distinct
conceptual bases for sentencing the defendant. 2F1.1(b)(2)
increases the punishment whether defendant’s crime evidenced
planning and forethought. 3B1.1 recognizes the additional

2la

culpability that a defendant should bear for being a leader or
organizer of a criminal activity that may involve five or more
participants.

Accordingly, if the crime has its base offense level

increased for more than minimal planning, it may be enhanced
as well.

Again, if the defendant, in addition, is one who organized
or led the planning of the offense.

The Eleventh Circuit has not ruled upon this specific issue.
At lease I don’t think it has. It has repeatedly held that what
would otherwise be considered double counting is permissible
if the Sentencing Commission intended the result and if the
result is permissible, because each section concerns
conceptually separate notions relating to sentencing.

That’s the language that comes out of the Eleventh Circuit
in U.S. versus Adeleke, A-d-e-l-e-k-e, 968 F.2d 1159 at 1161.
That’s an Eleventh Circuit case decided in 1992.

Quoting an earlier Eleventh Circuit case, U.S. versus
Aimufua, 935 F.2d 199 at 1201, Eleventh Circuit, 1991.

It appears to me that based upon the more than convincing
reasons in the opinions of the Willis court, the Curtis court and
the court in Godfrey that these are two provisions here that
involve conceptually distinct bases, and so the contention to
follow Romano is rejected.

I might add that courts have distinguished Romano from
their cases on the basis that Romano only dealt with one-half
of the 2F1.1(b)(2), the more than minimal planning aspect of
that provision. Romano did not address the more than one
victim portion of the provision.

22a

Indeed, the Fifth Circuit in Godfrey relied on this rationale
as an alternative basis for allowing sentencing under both
2F1.1(6)(2) and 3B1.1 in addition to saying flatly that it
directly disagreed with the Romano court.

Indeed, I think it’s also worth noting that the Sixth Circuit,
the circuit that produced Romano, has relied on this ground for
permitting sentencing under both 2F1.1(b)(2) and 3B1.1. See
United States versus Aideyan, A-i-d-e-y-a-b, Il F.2d 74 at 76,
Sixth Circuit, 1993.

Therefore, I think it’s probably accurate to say that no
circuit, including the Sixth, has taken the position that the
District Court cannot sentence under the two provisions if the
more than one victim portion of 2F1.1(b)(2) is the stated basis

for the upward departure.

In all events, I think that it does not amount to
impermissible double counting. I think the Probation
Department got it right, and that there can be an adjustment for
orle in the offense under 3B1.1 at the same time that there is an
adjustment for more than minimal planning. So the contention
is rejected. At least those are my reasons for rejecting it.

Having said that, we still have a question as to beyond the
legal proposition of whether or not one can be adjusted upward
on both grounds, whether it’s appropriate here. So why don’t
you go right to that issue.

(Trial Transcript, 8-12).

23a

APPENDIX E

§1B1.11. Use of Guidelines Manual in Effect on Date of
Sentencing (Policy Statement)

(a) The court shall use the Guidelines Manual in
effect on the date that the defendant is sentenced.

(b) (1) If the court determines that use of the
Guidelines Manual in effect on the date that
the defendant is sentenced would violate the
ex post facto clause of the United States
Constitution, the court shall use the
Guidelines Manual in effect on the date that
the offense of conviction was committed.

(2) The Guidelines Manual in effect on a
particular date shall be applied in its entirety.
The court shall not apply, for example, one
guideline section from one edition of the
Guidelines Manual and another guideline
section from a different edition of the
Guidelines Manual. However, if a court
applies an earlier edition of the Guidelines
Manual, the court shall consider subsequent
amendments, to the extent that such
amendments are clarifying rather than
substantive changes.

24a

APPENDIX F

§2F1.1 Fraud and Deceit
(a) Base Offense Level: 6

(b) Specific Offense Characteristics
(1) If the loss exceeded $2,000, increase the offense level
as follows:
Loss Increase in Level
(A) 2,000 or less no increase
(B) $2,001-$5,000 add 1
(C) $5,001-$10,000 add 2
(D) $10,001-$20,000 add 3
(E) $20,001-$50,000 add 4
(F) $50,001-$100,000 add 5
(G) $100,001-$200,000 add 6
(H) $200,001-$500,000 add 7
(I) $500,001-$1,000,000 add 8
(J) $1,000,001-$2,000,000 add 9
(K) $2,000,001-$5,000,000 add 10
(L) over $5,000,000 add 11

(2) If the offense involved (A) more than minimal planning;
(B) a scheme to defraud more than one victim; (C) a
misrepresentation that the defendant was acting on behalf
of a charitable, educational, religious or political
organization, or a government agency; or (D) violation of
any judicial or administrative order, injunction, decree or
process; increase by 2 levels, but if the result is less than
level 10, increase to level 10.

(3) Ifthe offense involved the use of foreign bank accounts or
transactions to conceal the true nature or extent of the
fraudulent conduct, and the offense level as determined
above is less than level 12, increase to level 12.

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APPENDIX G
§2F1.1 Fraud and Deceit
(a) Base Offense Level: 6
(b) Specific Offense Characteristics

(1) If the loss exceeded $2,000, increase the offense level
as follows:

Loss (Apply the Greatest) Increase in Level
(A) 2,000 or less no increase
(B) More than $2,000 add |
(C) More than $5,000 ; add 2
(D) More than $10,000 add 3
(E) More than $20,000 add 4
(F) More than $40,000 add 5
(G) More than $70,000 add 6
(H) More than $120,000 add 7
(I) More than $200,000 add 8
(J) More than $350,000 add 9
(K) More than $500,000 add 10
(L) More than $800,000 add 1]
(M) More than $1,500,000 add 12
(N) More than $2,500,000 add 13
(O) More than $5,000,000 add 14
(P) More than $10,000,000 add 15
(Q) More than $20,000,000 add 16
(R) More than $40,000,000 add 17
(S) More than $80,000,000 add 18.

(2) If the offense involved (A) more than minimal planning;
(B) a scheme to defraud more than one victim, increase by
2 levels.

(3)

(4)

(5)

(6)

26a

If the offense involved (A) a misrepresentation that the
defendant was acting on behalf of a charitable,
educational, religious or political organization, or a
government agency, or (B) violation of any judicial or
administrative order, injunction, decree or process,
increase by 2 levels. If the resulting offense level is less
than level 10, increase to level 10.

If the offense involved the conscious or reckless risk of
serious bodily injury, increase by 2 levels. If the resulting
level is less than level 13, increase to level 13.

If the offense involved the use of foreign bank accounts or
transactions to conceal the true nature or extent of the
fraudulent conduct, and the offense level as determined
above is less than level 12, increase to level 12.

If the offense --

(A) substantially jeopardized the safety of soundness of a
financial institution; or

(B) affected a financial institution and the defendant
derived more than $1,000,000 in gross receipts from
the offense, increase by 4 levels. If the resulting
offense level is less than level 24, increase to level 24.

27a

APPENDIX H

§3B1.1 Aggravating Role

Based on the defendant’s role in the offense, increase the
offense level as follows:

(a)

(b)

(c)

If the defendant was an organizer or leader of a
criminal activity that involved five or more
participants or was otherwise extensive, incrase by 4
levels;

If the defendant was a manager or supervisor (but not
an organizer or leader) and the criminal activity
involved five or more participants or was otherwise
extensive, increase by 3 levels.

If the defendant was an organizer, leader, manager, or

Supervisor in any criminal activity other than
described in (a) or (b), increase by 2 levels.

28a

APPENDIX I

UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

CASE NO. 94-4748

UNITED STATES OF AMERICA,
Appellee,
V.
AARIF DAHOD,
Appellant.

PETITION FOR REHEARING

Appellant AARIF DAHOD, through undersigned counsel,
pursuant to Rule 40, Fed.R.App.P., petitions this Court for
rehearing of the Court’s March 6, 1997 decision affirming
Dahod’s conviction and sentence.

I.
INTRODUCTION
Following oral argument, this Court, on March 6, 1997,
issued its’ opinion affirming Dahod’s conviction and sentence.
The Court likewise affirmed the conviction and sentence of co-

defendant Logal while reversing the restitution order relating
to deceased co-defendant Kuczek.

Dahod’s Petition for Rehearing exclusively relates to
sentencing issues raised concerning Dahod’s one hundred-two
month sentence. Dahod’s Petition for Rehearing focuses upon
two primary issues, to wit: the disparate application of Federal
Sentencing Guidelines between Dahod and co-defendants; and,
the sentencing court’s violation of the Ex Post Facto clause of

29a

the Constitution through application and use of more severe
guidelines implemented after Dahod’s alleged criminal activity
had been completed.

Dahod submits that the sentencing court, in determining an
offense level pursuant to §2F 1.1 of the Sentencing Guidelines,
was first required to determine an amount of loss and then
determine, based upon that amount of loss, which the offense
level applied to a defendant. Once that offense level was
determined, the sentencing court could make adjustments as set
forth in Chapter Three of the Sentencing Guidelines, as well as
for other special offense characteristics. See §1B1.1
(Application Guidelines).

The offense level for §2F1.1 offenses is based upon the
amount of loss suffered by the victim. It is therefore axiomatic
that in determining the appropriate offense level defendants
with the same “amount of loss” will have the same offense level
(prior to consideration of any other special offense
characteristics or Chapter Three adjustments). Not only was
Dahod’s (pre-adjustment) offense level not the same as co-
defendants, with the same or similar amounts of loss, but more
tragically, Dahod’s offense level was higher than co-defendants
with a higher amount of loss! The disparate application of the
§2F1.1 offense levels between co-defendants should benefit
from the close scrutiny of this Court. Dahod submits that the
obvious disparity contradicts the intent of the Sentencing
Guidelines and this Court’s restriction against disparity of
sentences. Rehearing would allow an unambiguous infirmity
to be cured.

Dahod also submits that close scrutiny of this Court is
required to review the sentencing court’s actual application of
amended sentencing guidelines (§2F1.1) which provided a
more harsh sentence to Dahod. Although this Court concluded
in its’ March 6, 1997 opinion to follow other circuits which

30a

have found the use of subsequent guidelines not to violate ex
post facto provision of the Constitution, Dahod submits that the
actual application of subsequent guidelines in Dahod’s case far
exceeded the methodology and use found to satisfy ex post
facto concerns.

Accordingly, when the actual use of the subsequent
guidelines are reviewed, that application constitutes a violation
of the Ex Post Facto clause.

II.

THE SENTENCING COURT'S IMPLEMENTATION
OF THE SENTENCING GUIDELINES WAS
IMPROPERLY DISPARATE BETWEEN CO-DEFENDANTS

Dahod submits that one of the most significant sentencing
errors related to the unambiguous disparity in the sentence
calculations between co-defendants. The court in its’ March 6,
1997 opinion did not specifically discuss this issue, however,
Dahod submits that the sentencing court’s error should be
addressed. In order to facilitate this Court’s review, Dahod will
attempt to narrow and focus the legal issue.

Section 2F1.1 of the Sentencing Guidelines clearly
requires that a sentencing court first make a factual finding
concerning the “amount of loss” from the fraud. A sentencing
court, based upon the amount of loss, then determines which
offense level should be applied. Subsequent to that
determination, other adjustments based upon special offense
characteristics and Chapter Three of the Sentencing Guidelines
matters may be made.

It is axiomatic that calculation of co-defendants offense
levels in the same fraud should result in the same adjusted
offense level if the amount of loss is determined to be the same
as the co-defendants amount of loss (prior to the

3la

aforementioned adjustments). Unfortunately, Dahod’s sentence
was constructed with an offense level higher than the offense
level of co-defendants who had been found to have either the
same or in certain cases larger “amounts of loss” than Dahod!

Dahod submits that the Sentencing Guidelines preclude the
sentencing court from arriving at and implementing disparate
application of “fraud” offense levels where the “amount of the
loss” is the same. Simply stated, where the amount of loss in
a fraud case is the same, the offense level based upon that loss
must be the same. Unfortunately, the trial court failed to
similarly apple the offense levels.

Dahod has fully set forth the scope of the disparity
between the particular co-defendants in his briefs to this Court.
Dahod submits that the disparity application in fact is precisely
the type of improper guideline application previously cited by
this Court. See United States v. Alpert, 989 F.2d 454, 459
(11th Cir. 1992); United States v. Chotas, 968 F.2d 1193 (11th
Cir. 1992).

Ii.

THE TRIAL COURT’S SENTENCE
VIOLATED THE EX POST FACTO CLAUSE

The Court’s opinion specifically discussed whether the
trial court’s use of sentencing guidelines not in existence at the
time of the offense which provided a more severe punishment
than the guidelines in affect at the time of the offense, violated
the ex post facto clause of the Constitution. The Court’s
opinion correctly cited the split among the circuits which have
previously addressed the ex post facto issue. The Court
rejected the rationale of the Ninth Circuit as set forth in United
States v. Canon, 66 F.3d 1073, 1081 (9th Cir. 1995), that a
sentence based upon a sentencing guideline provision adopted

32a

after the date of the crime which increased a defendant’s
punishment violated the ex post facto clause.

The “words and intent” of the Ex Post Facto Clause
encompass “[e] very law that changes the punishment,
and inflicts a greater punishment than the law annexed
to the crime when committed.” Calder v. Bull, 3 U.S.
(3 Dall) 386, 390, 1 L.Ed. 648 (1798)(opinion of
Chase, J.).

United States v. Canon, 66 F.3d at 1081.

Dahod obviously submits that the Canon (Ninth Circuit)
analysis should be relied upon in this case of apparent first
impression in this circuit. Nevertheless, the Court’s opinion
rejected Canon and instead relied upon a body of other cases
from other judicial circuits which permitted the “use” of
subsequent, more severe sentencing guidelines so long as the
new guidelines were “used” as a “benchmark” or “analogue”.

Unfortunately, no guideline has been provided to the
sentencing court or to a reviewing appellate court to identify
the difference between directly applying a new, more severe
guideline provision and merely utilizing the provision as a
yardstick, benchmark or analogy.

Although a sentencing court may state that a new, more
severe sentencing guideline is only being used as a “yardstick”
or a “benchmark”, that label is practically and functionally a
fiction when the sentencing imposed is precisely the sentence
that would be imposed had the “yardstick” guideline been in
effect.

Dahod’s sentence provides a graphic illustration of
mislabelling actual application of new, more severe sentencing
guidelines as “benchmark” or “analogue”.

33a

The relevant sentencing guideline §2F1.1 provides for a
base offense level of “6” with specific offense level increases
based upon “amount of loss”. The maximum amount of loss
provided by §2F1.1 is in “excess of five million dollars”, which
allows an eleven offense level increase.

Thus, an individual sentenced pursuant to these sentencing
guidelines should receive an adjusted offense level of seventeen
(base offense six plus specific offense eleven level increase).
A sentencing court, pursuant to “Commentary 10” to §2F1.1,
could depart above the eleven point specific offense level
increase if the loss substantially exceeded the $5 million loss.
The new sentencing guidelines provide for specific offense
levels increases for losses in excess of $5 million. Specifically,
the new guidelines provide three additional levels above the
five million dollar offense level for loss that include the $59
million amount assigned to Dahod.

Accordingly, if the new sentencing guideline would
actually be used as an analogue, the sentencing court would add
three levels to the existing adjusted offense level establishing
an adjusted offense level of twenty, (base offense level of six,
plus three level increase analogous to the three level increase
above the $5 million level).

However, instead of utilizing the new sentencing guideline
as an analogue, the sentencing court looked to what a $59
million loss would be with the amended §2F1.1. The
sentencing court then applied that level which was a seventeen
specific offense level increase and determined an amended
offense level of “23”.

The root of the sentencing court’s error was failing to
recognize that the amended sentencing guideline increased the
offense level for all losses above $100,000. Therefore, instead
of recognizing increases in the existing guidelines which,

34a

because of the Ex Post Facto clause, should have been
discounted, the trial court sentenced Dahod directly based upon
those increases. Comparison of §2F1.1 in the applicable and
amended guideline reveal the three level disparity.

EXISTING AMENDED
GUIDLINE GUIDELINE

LEVEL LEVEL
LOSS INCREASE INCREASE
(L) Over $5,000,00 Addil Add 14

Actually utilizing the amended sentencing guideline as an
analogue would result in Dahod’s offense level being a level
“20” instead of the level “23” determined by the court. The
level “23” reflects a direct application of the new sentencing
guideline and a violation of the Ex Post Facto clause of the
Constitution.

WHEREFORE, Appellant Dahod requests that his Petition
for Rehearing be granted.

Respectfully submitted,

BRUCE A. ZIMET, P.A.
Attorney for Appellant Dahod
One Financial Plaza, #2612

Ft. Lauderdale, FL 33394

Ft. Lauderdale: 954-764-7081)
(Miami: 305-948-3648)

BRUCE A. ZIMET, ESQUIRE
Florida Bar #225053

35a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true and correct copies of the
forgoing have been mailed this 26th day of March, 1997 to
Anne Schultz, Esquire, Assistant United States Attorneys, 99
N.E. Fourth Street, Miami, Florida 33132, Clark D. Mervis,
Esquire, Attorney for Appellant Logal, 2937 S.W. 27th
Avenue, Suite 202, Miami, Florida 33133 and Roy Black,
Esquire, Attorney for Appellant John Kuczek, 201 South
Biscayne Boulevard, Suite 1300, Miami, Florida 33131.

BRUCE A. ZIMET, ESQUIRE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1528%3A1. Public record. Not legal advice.