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No. 11-4910(L)
(7:10-cr-00067-SGW-1)
No. 11-5000
(7:10-cr-00067-SGW-1)
O R D E R
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4910
No. 11-5000
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke.
Samuel G. Wilson, District
Judge. (7:10-cr-00067-SGW-1)
Argued:
Decided:
trial,
the
district
court
granted
Abdelbarys
Rule
29
convictions.
including
Abdelbary
the
sufficiency
raises
of
various
the
issues
evidence
on
on
the
fees
to
Jordan
Oil
Company,
Inc.,
victim
of
Abdelbarys crimes.
courts
the
granting
of
Rule
29
motion.
For
the
following
I.
A.
Youssef
Abdelbary
owned
and
operated
gas
station
and
While
payment due to Jordan Oil in early February 2008 for gas it had
delivered,
Jordan
Oil
Jordan
sued
Oil
soon
ceased
its
thereafter
deliveries
to
collect
to
the
Abdelbary.
money
that
The following
Over
$59,879.31
from
the
his
next
eight
account
in
days,
eleven
Abdelbary
withdrew
transactions.
The
his
minutes.
store
The
in
multiple
value
of
equal
these
amounts
purchases
in
was
span
of
credited
few
to
the
account at Carter Bank and Trust that Abdelbary used for his
met
with
bankruptcy
attorney
in
July
2008.
Additionally,
Abdelbary
stated
at
the
bankruptcy
indictment
laundering,
18
structuring,
31
with
U.S.C.
U.S.C.
wire
fraud,
18
U.S.C.
1956(a)(1)(B)(i)
5324(a)(1)
and
and
(3)
1343,
(ii),
and
money
currency
5324(d),
reasonable
doubt
that
Abdelbary
incurred
the
credit
card
the
Government
had
not
met
this
burden
and
therefore
months
in
prison.
The
court
entered
criminal
II.
We turn first to Abdelbarys claim that the evidence was
insufficient
structuring.
to
support
the
convictions
for
currency
quotation
mark
omitted).
In
reviewing
the
support it.
60, 80 (1942)).
reasonable
inferences
in
favor
of
the
Government,
any
Ultimately,
Beidler, 110
31
U.S.C.
transactions
5324(a),
in
such
person
way
to
cannot
avoid
the
two
types
structuring,
of
is
structuring.
prohibited
by
The
structure
reporting
Federal law
first
type,
5324(a)(1)
and
Cir. 2010).
by
5324(a)(3)
and
criminalizes
conduct
three
elements
to
support
5324(a)(1) or 5324(a)(3):
in
structuring;
requirements
(2)
under
the
federal
Id.
designed
to
avoid
conviction
under
either
knew
law;
(3)
and
of
the
the
reporting
purpose
of
the
United States v.
at
was
charged
with
three
counts
of
imperfect
of
review,
we
hold
that
the
Government
offered
J.A. 1904.
Then, in
law.
Despite
Abdelbarys
contention,
the
record
that
the
Government
met
its
burden.
Ralph
Stewart
testified that he told Abdelbary about the CTRs and the filing
requirements.
he
told
J.A. 87.
Abdelbary
explicitly
that
the
CTRs
were
required
by
Carter Bank
less
than
$10,000.
This
attempt
to
hide
illegal
See
Beidler,
110
F.3d
at
1069
([W]e
hold
that
manner
indicating
design
to
conceal
the
structuring
convicted
of
currency
structuring
does
not
mean
424
as
F.3d
a
at
19495
businessman);
(discussing
Beidler,
110
the
that
See, e.g.,
defendants
F.3d
at
1070
the
was
by
to
the
The
withdrawals
third
avoid
same
fact
below
elementthat
evidence
that
the
the
purpose
reporting
that
Abdelbary
$10,000
the
threshold
the
requirementis
satisfied
began
of
this
only
the
second
pattern
of
after
he
his
intent).
Therefore,
the
record
contains
sufficient
III.
We
next
address
the
Governments
cross-appeal
of
the
When we review a
10
district
courts
decision
to
grant
motion
for
judgment
of
238 (4th Cir. 1999) (quoting United States v. Steed, 674 F.3d
284,
286
(4th
Cir.
1982)).
Wire
fraud
has
two
essential
of
scheme.
2006).
[a]
wire
communication
in
furtherance
of
the
conducted
or
attempted
to
conduct
financial
transaction
the
proceeds
were
from
unlawful
activity;
and
(4)
the
to
conceal
activity.
or
disguise
the
proceeds
of
the
unlawful
Cir. 1998). 4
11
We
agree
with
the
Government
that
the
record
contains
Assuming without
deciding
interpreted
that
the
district
court
properly
the
J.A.
J.A. 1906
J.A. 1903.
During these
few weeks, Abdelbary was also making withdrawals from his bank
account in less than $10,000 increments.
J.A. 1905.
Abdelbary
he
wanted
bankruptcy.
to
sue
J.A. 102.
Jordan
Oil
again,
not
to
file
for
to
the
bankruptcy
attorney
for
filings
in
that
proceeding about whether he had made any gifts within one year
or transferred any property within two years of the filing, J.A.
194445, and to lie at the creditors meeting about whether he
transferred assets to family members, J.A. 350.
Abdelbary also
J.A. 210.
Additionally,
together,
juror
to
this
conclude
evidence
that
is
J.A. 1902.
sufficient
Abdelbary
used
his
for
credit
13
his
convenience
store,
never
made
any
payments
on
those
Government,
this
is
sufficient
for
the
jury
to
conclude that the credit card charges were made with the intent
of filing for bankruptcy so that Abdelbary could keep the cash
he obtained from those credit card charges to use after his
dispute with Jordan Oil concluded without having to repay the
credit card companies.
IV.
Finally, we address the issue of the restitution award.
The
district
court
ordered
Abdelbary
to
pay
$84,079.35
in
United States
law
discretionary
Protection
Act
provides
restitution
(VWPA),
two
under
18
forms
the
U.S.C.
of
Victim
3663,
restitution,
and
and
Witness
mandatory
14
18 U.S.C. 3663A.
findings.
Under
the
VWPA,
the
district
court
must
any
other
3663(a)(1)(B)(i)(II).
appropriate
factors.
18
U.S.C.
resources,
obligations.
projected
earnings,
and
other
financial
F.3d at 668 (discussing the structure of the VWPA and the MVRA).
Here, the district court failed to state under which act it
was
ordering
restitution.
On
multiple
occasions
during
the
of
court
the
to
MVRA
and
indicate
the
which
VWPA,
the
statute
failure
it
was
of
the
applying
15
Id.
Therefore,
consistent
with
Leftwich,
we
vacate
the
V.
Based on the foregoing, we affirm Abdelbarys conviction
for
currency
structuring.
We
reverse
the
district
courts
16
Abdelbary