United States of America, Plaintiff-appellee, v. Dawood Momeni, Defendant-appellant, 991 F.2d 493 (9th Cir. 1993)

Dawood Momeni traveled to Hawaii on eight occasions between February, 1986 and November, 1987, and charged his hotel and miscellaneous expenses to credit cards not owned by him. He appeals his conviction and sentence on multiple counts of mail, wire and credit fraud.

* Momeni argues there was insufficient evidence he was the person involved in the events at the hotels alleged in counts two, five and seven.

The government presented "signature" evidence suggesting that each of the hotel stays involved the same individual. Some combination of the following characteristics appeared with respect to each of the challenged counts: the perpetrator gave the same fictitious address and/or fictitious telephone number; tips on credit card vouchers were in such amounts that the totals rounded off to even dollar amounts (e.g., bill of $6.87 plus $1.13 tip equals $8.00); the perpetrator purchased jewelry from the hotel jewelry shop and charged it to his room; the perpetrator departed prior to the scheduled end of his stay without checking out. Evidence of this kind may be sufficient alone to establish a perpetrator's identity. See United States v. Milhollan, 599 F.2d 518, 524-25 (3d Cir. 1979) (finding similar modus operandi evidence probative of identity); 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence p 404 (1992) (discussing "signature" evidence in context of Fed.R.Evid. 404(b)).

In addition, the government offered evidence that Momeni rented a car in his own name on dates that closely matched the dates on which eight separate hotel stays were charged to other people's credit cards. The government also presented thirteen eyewitnesses who identified Momeni as the person who offered another person's card at five of the hotels, although not at the hotels involved in counts two, five and seven. The similar modus operandi at all eight hotel stays, Momeni's presence on the relevant island at the relevant times, and his identification by eyewitnesses at the five other hotel stays, suffice to support his conviction on the three counts as to which the government produced no such witnesses.

Momeni challenges the sufficiency of the evidence that use of the credit cards involved in counts two and ten was not authorized. The government did not present direct testimony from the persons to whom the cards were issued that Momeni's use of the cards was not authorized, but did introduce evidence that Momeni claimed not to know the persons to whom the cards were issued and that the owners of the cards refused to pay the charges Momeni made on their cards. The jury could conclude from this evidence that Momeni was not authorized to use the cards.¹ 

Count 12 of the indictment charged an attempt to violate 18 U.S.C. § 1029(a) (2) through fraudulent use of a Discover credit card at the Hyatt Regency Hotel on Maui. Momeni argues the government failed to prove the statutory minimum of $1,000 in charges within a year because the evidence showed only $940 in charges at the Hyatt Regency.²  The government presented evidence of other charges to the same credit card at other hotels during the same period that brought the total over the $1,000 minimum, but Momeni insists the government must prove the terms of the indictment as drafted.

A difference between allegations in the indictment and proof adduced at trial may constitute a constructive amendment of the indictment, which would require reversal, or only a variance, which would not. As the court explained in United States v. Pisello, 877 F.2d 762 (9th Cir. 1989),

a constructive amendment occurs when 'the crime charged [is] substantially changed at trial, so that it [is] impossible to know whether the grand jury would have indicted for the crime actually proved." ... [H]owever, ... a mere variance occurs when the prosecution's evidence proves facts different from those alleged in the indictment.... The line essentially is between the situation in which different evidence supports the charged crime and that in which the evidence supports a crime other than that charged. Although the latter, an amendment, requires reversal, the former, a variance, does not warrant reversal unless it affects the substantial rights of the defendant.

Id. at 765 (citations omitted).

The fact that credit card charges at several hotels must be aggregated to meet the $1,000 statutory minimum does not change the crime charged, which is still credit card fraud under 18 U.S.C. § 1029(a) (2). The proof therefore reflects a variance from the literal charge, not a constructive amendment. See United States v. Von Stoll, 726 F.2d 584, 587 (9th Cir. 1984). The variance did not affect Momeni's substantial rights because the place where the credit card charges were made is irrelevant to conviction under 18 U.S.C. § 1029(a) (2), and the record shows Momeni had notice the government would offer evidence of the charges at other hotels and that he did not object to its introduction at trial.

II

In imposing sentence, the district court adjusted the offense level upward two levels for obstruction of justice under U.S.S.G. § 3C1.1, on the ground Momeni had perjured himself in his testimony at trial.³  Momeni does not contest this adjustment. The court also departed upward under 18 U.S.C. § 3553(b) from the guidelines range of 18-24 months and sentenced Momeni to 30 months on the ground that the two-level adjustment under § 3C1.1 did not sufficiently address the seriousness of Momeni's perjury as a witness.⁴  Momeni challenges this departure.

Momeni does not contest the district court's finding as to the nature and extent of his perjury at trial, and for good reason.⁵  Instead, Momeni argues that when a court has adjusted the sentence upward under § 3C1.1 because a defendant has perjured himself at trial, as a matter of law the court may not depart from the sentence on the basis of the same perjury.

United States v. Ward, 914 F.2d 1340 (9th Cir. 1990), is controlling authority to the contrary. We held in Ward that after granting an upward adjustment under § 3C1.1 for perjury at trial, the sentencing court may, in addition, depart upward from the adjusted guideline sentence under 18 U.S.C. § 3553(b) if the defendant's perjury at trial is "significantly more egregious than the ordinary cases of obstruction listed in the application notes to § 3C1.1, of which the Commission has taken full account." Id. at 1348.⁶  Ward reflects the general rule that departure is appropriate where an aggravating circumstance is present to a degree not taken into account by the Sentencing Commission. U.S.S.G. § 5K2.0; see also United States v. Wade, 931 F.2d 300, 306 (5th Cir. 1991) (allowing upward departure above obstruction adjustment where obstruction was egregious).

Momeni relies on United States v. Goodrich, 919 F.2d 1365 (9th Cir. 1990). Goodrich is not inconsistent with Ward. In Goodrich the offense charged was perjury itself. The sentencing judge departed from the guideline range based not on the egregiousness of the lies the defendant told in the course of testimony at trial, but rather on the number of lies that were encompassed in the charge of perjury itself. We held that the court may not depart from the guideline sentence for perjury simply because the perjury charged included a large number of false statements. Id. at 1368. Goodrich did not involve either adjustment or departure based upon a defendant's perjury at trial.

Affirmed.