Case: 14-10611   Date Filed: 01/13/2015   Page: 1 of 15


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10611
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:13-cr-00162-SCB-EAJ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


KAMRAN ROUHANI,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (January 13, 2015)

Before HULL, MARCUS, and MARTIN, Circuit Judges.

PER CURIAM:
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      Kamran Rouhani appeals his convictions and sentence of 12 months and 1

day of imprisonment following a jury verdict finding him guilty of three counts of

wire fraud in violation of 18 U.S.C. § 1343. Rouhani’s conviction was based on

three emails he sent on April 25, April 29, and June 10, 2008, in his capacity as the

owner and operator of Aviation Engineering Consultants, Inc. (“AECI”) from

AECI’s office in Florida to the office of L-3 Communications Integrated Systems,

LP (“L-3”) in Waco, Texas. L-3 selected AECI to manufacture air duct assemblies

for use in the aircraft it was building for the United States Navy. The two purchase

orders from L-3 included strict requirements for how the parts would be

manufactured, tested, and delivered. Specifically relevant to this case, the

contracts required that AECI use only certified welders to weld the ducts and that

AECI ensure that all the ducts passed both dye penetrant testing and hydrostatic

pressure testing. The e-mails underlying Rouhani’s conviction included

certifications of compliance, signed by Rouhani, stating that the aircraft parts

satisfied the contractual requirements.

      On appeal, Rouhani argues that his conviction should be reversed because

the government did not establish sufficient facts for a reasonable jury to find

beyond a reasonable doubt that he intentionally participated in a scheme to defraud

L-3 and used the interstate wires to further the scheme. As to his sentence,

Rouhani argues that the district court clearly erred in concluding that he committed


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perjury at trial and imposing a two-level sentence enhancement as a result. He also

argues that his total sentence of 12 months and 1 day is substantively unreasonable.

Finally, he argues that the district court clearly erred in calculating the restitution

and forfeiture money judgment amounts. Specifically regarding the restitution

amount, he argues that the district court erred in failing to offset the $28,640.09

amount by the market value of some of the ducts that were later shown to have

passed hydrostatic pressure testing. Rouhani finally challenges the forfeiture

amount based upon the absence of evidence that he personally received the

$28,640.09.

      We address each issue in turn.

                                            I.

      We review de novo Rouhani’s challenge to the sufficiency of the evidence

supporting his jury verdict. United States v. Jiminez, 

, 1284 (11th

Cir. 2009). We must determine whether a reasonable jury could have found the

defendant guilty beyond a reasonable doubt. 

In making this

determination, we view the evidence “in the light most favorable to the

government, and draw[] all reasonable factual inferences in favor of the jury’s

verdict.” 

      To support a conviction for wire fraud under 18 U.S.C. § 1343, the

government must prove: “(1) intentional participation in a scheme to defraud, and


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(2) the use of the interstate . . . wires in furtherance of that scheme.” United States

v. Maxwell, 

, 1299 (11th Cir. 2009). “A scheme to defraud requires

proof of material misrepresentations, or the omission or concealment of material

facts reasonably calculated to deceive persons of ordinary prudence.” United

States v. Hasson, 

, 1270–71 (11th Cir. 2003) (internal citations

omitted). “A material misrepresentation is one having a natural tendency to

influence, or capable of influencing, the decision maker to whom it is addressed.”

To prove intent, the government must establish that the defendant

believed that the victim would act or refrain from acting in reliance upon his

misrepresentation. United States v. Bradley, 

, 1239 n.58 (11th Cir.

2011) (quoting Pelletier v. Zweifel, 

, 1499 (11th Cir. 1991)). A jury

may infer such an intent from the defendant’s conduct. 

(quoting

). Additionally, when a defendant takes the stand and

testifies that he never intended to defraud anyone, the jury is free to disbelieve the

defendant’s statements “and to take them as substantive evidence to the contrary.”

United States v. Ellisor, 

, 1272 (11th Cir. 2008). Finally, to prove

that the interstate wires were knowingly used in furtherance of the scheme, the

government is required to establish only that the “interstate wire transmission

[wa]s . . . incident to an essential part of the scheme or a step in the plot.” Hasson,




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(internal quotation marks omitted). It is not necessary that the

transmitted information include a misrepresentation. 

      Viewing the evidence de novo in the light most favorable to the government,

a reasonable jury could conclude that Rouhani committed wire fraud. The

evidence showed that Rouhani allowed uncertified welders to weld the ducts

intended for L-3, even though the purchase order contracts required that AECI use

only certified welders. Rouhani also observed some of the quality testing of the

ducts and spoke with the employees involved in the testing. As a result, he was

aware that the hydrostatic pressure testing did not meet the requirements of the

contracts and that AECI did not have the resources or the proper tools to conduct

the contractually-mandated testing. Rouhani nevertheless sent certifications of

compliance to L-3 via e-mail, stating that the ducts were fully compliant. Based on

this evidence, a reasonable jury could find that Rouhani intentionally participated

in a scheme to defraud L-3 and used the interstate wires in furtherance of that

scheme. We therefore affirm Rouhani’s convictions.

                                          II.

      In evaluating a sentencing enhancement for obstruction of justice, we

review the district court’s findings of fact for clear error and review de novo its

application of the factfindings to the sentencing guidelines. United States v. Doe,

, 565 (11th Cir. 2011). To find clear error, we must have a “definite


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and firm conviction” that a mistake has been made. United States v. Rodriguez-

Lopez, 

, 1137 (11th Cir. 2004) (quotation omitted). The government

bears the burden to establish the necessary facts to support a sentencing

enhancement by a preponderance of the evidence. United States v. Perez-Oliveros,

, 783 (11th Cir. 2007).

      The United States Sentencing Guidelines provide a two-level enhancement

for obstruction of justice. U.S. Sentencing Guidelines § 3C1.1. The enhancement

is appropriate where the district court finds the defendant committed, suborned, or

attempted to suborn perjury. 

For purposes of § 3C1.1,

perjury is defined as giving “false testimony concerning a material matter with the

willful intent to provide false testimony, rather than as a result of confusion,

mistake, or faulty memory.” United States v. Dunnigan, 

, 94, 113 S.

Ct. 1111, 1116 (1993), abrogated on other grounds by United States v. Wells, 

, 

(1997). The sentencing court should make independent

findings that establish the elements of perjury. 

, 113 S.

Ct. at 1117. “Although it is preferable that the district court make specific findings

by identifying the materially false statements individually, it is sufficient if the

court makes a general finding of obstruction encompassing all the factual

predicates of perjury.” United States v. Diaz, 

, 1256 (11th Cir.

1999).


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      The district court did not err in finding that Rouhani had committed perjury

and imposing a two-level enhancement under § 3C1.1. The district court first

made generalized findings that Rouhani willfully lied about material facts,

including the welder certifications and the testing of the ducts. The district court

then went on to identify specific statements that were materially false. The court

explained that (1) with regard to the welder certifications, Rouhani had testified

“everything from . . . they were certified welders, to it was L-3’s responsibility to

certify the welders, to they had some sort of certification that wasn’t really official

certification”; and (2) with regard to the testing of the ducts, Rouhani’s testimony

“was everything from, yes, [AECI] did send the information regarding the testing;

to yes, [AECI] did the testing in-house, even though he might have suggested that

he sent the parts out to be tested.” Sentencing Tr. at 9. We affirm the district

court’s application of § 3C1.1.

                                          III.

      We review the reasonableness of a sentence using a deferential abuse-of-

discretion standard. Gall v. United States, 

, 41, 

, 591

(2007). In reviewing for substantive reasonableness, we examine the totality of the

circumstances and ask “whether the statutory sentencing factors in [18 U.S.C.]

§ 3553(a) support the sentence in question.” United States v. Gonzalez, 

, 1324 (11th Cir. 2008) (per curiam). The party challenging the sentence has


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the burden of demonstrating that the sentence is unreasonable in light of the record

and factors outlined in § 3553(a). United States v. Talley, 

, 788 (11th

Cir. 2005) (per curiam), abrogated on other grounds by Rita v. United States, 

, 

(2007). We will remand for resentencing only if “we are

left with the definite and firm conviction that he district court committed a clear

error of judgment in weighing the § 3553(a) factors by arriving at a sentence that

lies outside the range of reasonable sentences dictated by the facts of the case.”

United States v. Irey, 

, 1190 (11th Cir. 2010) (en banc) (quotation

omitted).

      Under § 3553(a), the district court must impose a sentence “sufficient, but

not greater than necessary, to comply with the purposes” listed in § 3553(a)(2),

including the need to reflect the seriousness of the offense, to promote respect for

the law, to provide just punishment for the offense, to deter criminal conduct, to

protect the public from the defendant’s future criminal conduct, and to provide the

defendant effective correctional treatment. See 18 U.S.C. § 3553(a). In imposing

a particular sentence, the district court must also consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable guideline range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted




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sentencing disparities, and the need to provide restitution to victims. 

(3)–(7).

      The weight given to any specific § 3553(a) factor is committed to the sound

discretion of the district court. United States v. Williams, 

, 1322

(11th Cir. 2008) (per curiam). We have recognized that “there is a range of

reasonable sentences from which the district court may choose.” 

. A sentence that falls within the guideline range is one indicator of

reasonableness. See 

imposed well below the statutory maximum

may also indicate that it is reasonable. 

. However, the

district court can abuse its discretion when it (1) fails to consider factors that were

due significant weight, (2) gives an improper or irrelevant factor significant

weight, or (3) commits a clear error of judgment by balancing the proper factors

unreasonably. 

.

      Rouhani has not shown that his sentence is unreasonable, or that the district

court committed a clear error of judgment in weighing the § 3553(a) factors. As

the district court observed, Rouhani’s offense was serious due to the nature of the

work involved—namely, the production of faulty aircraft parts. The district court

also noted that Rouhani had not testified truthfully at trial. The district court

recognized, however, that it did not appear that Rouhani was a danger to the

community or that the offense would be repeated. Furthermore, the district court


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found that many people depend on Rouhani, not only in his business but also in his

personal life, and Rouhani had a history of trying to be a good citizen and doing

good deeds. Based on these factors, the district court granted a downward variance

from the guideline range of 18-to 24-months imprisonment, and imposed a

sentence of 12 months and 1 day for all counts, to run concurrently.

      The district court did not abuse its discretion in evaluating the § 3553(a)

factors, thus Rouhani fails to show that his sentence is substantively unreasonable.

We affirm the sentence.

                                           IV.

      We review de novo the legality of a restitution order, but we review for clear

error the underlying findings of fact relevant to the order. United States v. Brown,

, 1252 (11th Cir. 2011) (per curiam). As to a forfeiture money

judgment, we review de novo the district court’s legal conclusions and its findings

of fact for clear error. United States v. Hoffman-Vaile, 

, 1340 (11th

Cir. 2009). With regard to arguments raised for the first time on appeal, however,

the plain error standard of review applies. United States v. Rodriguez, 

, 1298 (11th Cir. 2005). Under the plain error standard of review, the

defendant must show (1) an error, (2) that is plain, (3) that affects the defendant’s

substantial rights, and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Puckett v. United States, 

, 135,


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, 1429 (2009) (quotations omitted). An error is plain if it is “clear

or obvious, rather than subject to reasonable dispute.” 

the Mandatory Victims Restitution Act, the district court is required

to order a defendant to make restitution upon his conviction for any crime “in

which an identifiable victim or victims has suffered a . . . pecuniary loss.” 18

U.S.C. § 3663A(a)(1), (c)(1)(B). The district court is required to order restitution

“to each victim in the full amount of each victim’s losses.” 

This statutory mandate requires that a restitution award “be based on the amount of

loss actually caused by the defendant’s conduct.” United States v. Huff, 

, 1247 (11th Cir. 2010) (quotation omitted).

      The government bears the burden to establish the restitution amount by a

preponderance of the evidence. United States v. Futrell, 

, 1290

(11th Cir. 2000) (per curiam); see also 18 U.S.C. § 3664(e). “The [g]overnment

must demonstrate the amount of such loss with evidence bearing sufficient indicia

of reliability to support its probable accuracy.” United States v. Singletary, 

, 1217 n.21 (11th Cir. 2011) (quotation omitted). However, “the

determination of the restitution amount is by nature an inexact science.” 

(quotation omitted). That being the case, where difficulties arise in

establishing the exact amount of restitution, a district court may accept a


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“reasonable estimate” of the loss based on the evidence presented. See 

–92. When making a reasonableness determination of the restitution

amount, district courts should “resolv[e] uncertainties with a view toward

achieving fairness to the victim”). 

(quotation omitted).

      When ordering restitution, a district court should explain its findings with

“sufficient clarity” so as to enable this Court to perform its function on appellate

review. 

district court should make factual findings as to: (1)

whether the victim suffered a loss; and (2) the amount of the actual loss suffered.

      The district court’s calculation of the restitution amount was not clearly

erroneous. At sentencing, the government established by a preponderance of the

evidence that the amount of L-3’s losses was $28,640.09. L-3 had to remove the

non-conforming ducts from use, given that a high percentage of the ducts failed

retesting by L-3 and the ducts were intended for high-risk use on an aircraft,

requiring heightened adherence to quality standards. Furthermore, the district

court did not clearly err in failing to limit the restitution to the amount Rouhani

personally received from L-3, because the $28,640.09 amount constituted the full

amount of L-3’s losses. See 18 U.S.C. § 3664(f)(1)(A).

      Because he failed to preserve this issue for appeal, we review Rouhani’s

argument regarding offsetting the $28,640.09 amount by the market value of the


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ducts for plain error. The district court did not plainly err in failing to offset the

$28,640.09 amount by the value of the four ducts which later passed hydrostatic

testing. Those ducts still did not comply with the dye penetrant testing and

certified welder requirements of the purchase order contracts. Thus, per L-3’s

standards the ducts could not be used to manufacture airplanes and offered no

value to offset.

                                           B.

      The criminal forfeiture statute only extends to wire fraud cases if the

violation “affect[s] a financial institution.” 18 U.S.C. § 982(a)(2). However,

pursuant to 28 U.S.C. § 2461(c), criminal forfeiture is available in cases beyond

the reach of a specific criminal forfeiture statute where civil forfeiture is legally

authorized. United States v. Padron, 

, 1161–62 (11th Cir. 2008); see

also § 2461(c).

      Civil forfeiture is legally authorized for wire fraud convictions because,

under 18 U.S.C. § 981(a)(1)(C), the government may seek civil forfeiture of any

property which constitutes or is derived from proceeds traceable to, among other

things, any offense constituting “specified unlawful activity” as defined by 18

U.S.C. § 1956(c)(7). That statutory definition includes wire fraud offenses. See

§ 1956(c)(7)(A) (citing 18 U.S.C. § 1961(1)). Under § 981(a) and § 2461(c), the

forfeiture provisions charged in this case, the government may seek forfeiture of


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the “proceeds” of the wire fraud convictions, § 981(a)(1)(C), which means

“property of any kind obtained directly or indirectly, as the result of the

commission of the [wire fraud], and any property traceable thereto, and is not

limited to the net gain or profit realized from the offense.” § 981(a)(2)(A).

Forfeiture in such criminal proceedings is in personam, “serves no remedial

purpose, is designed to punish the offender, and cannot be imposed upon innocent

owners.” United States v. Bajakajian, 

, 332, 

, 2035

(1998); see also United States v. Gilbert, 

, 918–19 (11th Cir. 2001),

superseded by rule on other grounds as stated in United States v. Marion, 

, 1340–41 (11th Cir. 2009) (per curiam). “Because it seeks to penalize the

defendant for his illegal activities, in personam forfeiture reaches only that

property, or portion thereof, owned by the defendant.” 

see also United

States v. Contorinis, 

, 145 (2d Cir. 2012) (reversing a forfeiture order

because a defendant “cannot be ordered to forfeit profits that he never received or

possessed”).

      The district court erred in ordering Rouhani to forfeit $28,640.09 in proceeds

without making any findings as to whether Rouhani ever received or possessed the

proceeds as a result of his wire fraud crime. Rouhani’s attorney explained at

sentencing that “in this case it’s clearly not a situation where L-3 wrote the checks

to Mr. Rouhani. They went to the corporation and were distributed to whatever


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costs the corporation may have.” The district court nonetheless concluded that

“it’s Mr. Rouhani that should suffer the adverse effects of the forfeiture money

judgment.” But the government did not submit any evidence establishing this fact.

Though the government’s motion for a forfeiture money judgment claims that

“Rouhani . . . received payment in the amount of $28,640.09 for the parts,” at

sentencing the government only established that AECI received the $28,640.09 in

proceeds. There is no evidence that any of the proceeds came to Rouhani

personally, and AECI, which did receive the proceeds, is neither a co-defendant

nor a co-conspirator.1 We therefore vacate the district court’s forfeiture order and

the resulting portion of the judgment against Rouhani and remand for further

proceedings.

       AFFIRMED IN PART, VACATED IN PART AND REMANDED.




1
  Though Rouhani’s ownership of AECI might satisfy the “alter ego” theory of liability, see
United States v. McLaughlin, 565 F. App’x. 470, 476–77 (6th Cir. 2014), the district court made
no independent factual analysis that would support awarding a forfeiture money award against
Rouhani on that basis. Cf. United States v. Peters, 

, 385–87 (W.D.N.Y. 2009)
(setting aside corporate formalities and awarding a forfeiture money judgment against a
defendant for fraudulent loan proceeds received by the corporation after a detailed factual
analysis of the relationship between the defendant and the corporation).
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