United States v. Aldissi

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAHMOUD ALDISSI, a.k.a. Matt,ANASTASSIA BOGOMOLOVA, a.k.a. Anastasia, Defendants - Appellants.

No. 15-14193

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

December 13, 2018

[DO NOT PUBLISH]

D.C. Docket No: 8:14-cr-00217-VMC-EAJ-1

Appeals from the United States District Court for the Middle District of Florida

Before JILL PRYOR, HULL, Circuit Judges, and PROCTOR,^* District Judge.

PROCTOR, District Judge:

In this appeal we are asked to decide a number of issues arising out of a trial in which Mahmoud Aldissi and Anastassia Bogomolova (collectively, for ease of reference "the Scientists" or "Defendants") were convicted of wire fraud. The Scientists have also raised issues related to their respective sentencings. The trial involved charges that Aldissi and Bogomolova submitted fraudulent scientific research proposals in order to obtain federal funds through competitive set-aside programs which Congress designed to enable eligible small businesses to research and commercialize new technology. Between 1997 and 2011, the Scientists obtained 44 Small Business Innovation Research ("SBIR") and Small Business Technology Program ("STTR") contracts or grants collectively worth approximately $10.5 million. They applied for an additional $13.8 million in contracts or grants, which they did not receive. When applying for the government set-aside programs, Defendants lied about their facilities, equipment, subcontractors, employees, and eligibility; forged endorsements from respected scientists and industry specialists; and thereafter submitted falsified business records to officials investigating the fraud. They admit that, under the terms of the bid requirements, they were not eligible for any of the contracts or grants for which they applied.

Nevertheless, Defendants argue that (1) the evidence introduced at trial was insufficient to convict them, (2) the district court committed errors at trial, and, further, (3) the district court also erred in sentencing them. After careful review, andwith the benefit of oral argument, we disagree in all respects and affirm both their respective convictions and sentences.

I. BACKGROUND

The trial below was lengthy and the record on appeal is expansive. Before addressing the Defendants' arguments, we briefly discuss the procedural history, summarize relevant facts, and catalog the arguments raised by Defendants in this appeal.

A. Procedural History

Defendants are husband and wife. After an 18-day trial, a jury found Defendants guilty of the following offenses: one charge of conspiracy to commit wire fraud under 18 U.S.C. § 1349 (Count One); seven charges of wire fraud under 18 U.S.C. § 1343 (Counts Two through Eight); five charges of aggravated identity theft under 18 U.S.C. § 1028A (Counts Nine through Thirteen); and two charges of falsification of records involving federal investigations under 18 U.S.C. § 1519 (Counts Fourteen and Fifteen). The guideline imprisonment range for both Aldissi and Bogomolova was calculated to be 324 to 405 months. (Aldissi PSR ¶ 126; Bogomolova PSR ¶ 128). The district court sentenced Aldissi to serve a total of 180 months' imprisonment - i.e., concurrent custodial terms of 156 months as to Counts One through Eight, Fourteen, and Fifteen, followed by a 24-month custodial term as to Count Nine, consecutive to Counts One through Eight, Fourteen and Fifteen, and24 months on Counts Ten through Thirteen, concurrent to Count Nine. (Doc. #334; Doc. #337). The district court sentenced Bogomolova to serve a total of 156 months' imprisonment - i.e., concurrent custodial terms of 132 months as to Counts One through Eight, Fourteen, and Fifteen, followed by 24-month custodial terms as to Count Nine, consecutive to Counts One through Eight, Fourteen and Fifteen; and 24 months on Counts Ten through Thirteen, concurrent to Count Nine. (Doc. #335; Doc. #339). Defendants were ordered to pay $10,654,969 in restitution. (Docs. #334, 335).

B. Summary of Relevant Facts

Congress established the SBIR and STTR programs to assist qualified small businesses with the expense of researching and developing innovative technology "in order to maintain and strengthen the competitive free enterprise system and the national economy." 15 U.S.C. § 638-(a). Under these programs, federal agencies with research-and-development budgets must set aside a percentage of those budgets to fund research by qualifying small businesses. (Doc. #378-2 at 139). The set-asides stimulate research and innovation and encourage private companies to commercialize research with an actual product or service. (Doc. #378-1 at 51; Doc. #378-2 at 101-05; Doc. #378-3 at 59). In fact, commercialization is the main goal. (Doc. #378-3 at 46, 59, 212; Doc. #378-6 at 141-42; Doc. #378-9 at 18-25).

As part of a highly competitive process, researchers electronically submit detailed proposals outlining their research and identifying material components of their proposals, including the principal investigator ("PI"), key employees, facilities, equipment, consultants, budget, profits, workplan, and other information. (Doc. #378-2 at 109, 116-18, 151; Doc. #378-3 at 60-61; Doc. #378-4 at 277; Doc. #378-6 at 122, 133-34, 141). The supporting federal agency screens all proposals and eliminates those that do not meet eligibility requirements. (Doc. #378-4 at 168, 209-11). Generally, a proposal is ineligible if the PI is not primarily employed (at least 51%) by the small business or is employed full-time elsewhere, or if the work will not be performed in the United States. (Doc. #378-2 at 109, 128-32, 141-42; Doc. #378-3 at 103; Doc. #378-4 at 168, 209-10; Doc. #378-6 at 25). The proposals are scored by a panel of experts and a winner is determined. (Doc. #378-4 at 168-69). The agency then incorporates the winning proposal into a contract, and a supervising reviewer monitors periodic reports submitted by the business and documents performance. (Id.). In submitting a proposal (and later, in requesting payment), each small business official certifies that the information in the proposal is true and acknowledges that submitting false information qualifies as a criminal offense. (Doc. #378-4 at 221; Doc. #378-5 at 8; Doc. #378-9 at 157-66; Doc. #378-11 at 138-39; Doc. #378-12 at 197-201).

The Scientists admit that their proposals were deceptive in several ways: (1) they forged letters of support using cut and paste methods and Photoshop; (2) they misrepresented their access to lab space (including facility and square footage) and equipment, and their physical address; (3) they falsely listed inflated price quotes from consultants and subcontractors they did not intend to use and, in fact, did not use; (4) they misrepresented Aldissi's eligibility to serve as PI; (5) they inflated their companies' number of employees; and (6) they mischaracterized their relationships with research institutions and commercial partners. (Appellants' Brief at 11-12). These deceptions were admittedly material: that is, without them, the agencies would not have funded the Scientists' proposals. (Doc. #378-3 at 61, 70; Doc. #378-5 at 10, 163-64, 193-94, 227, 243-44; Doc. #378-6 at 32, 42; Doc. #378-7 at 155-56, 166, 219-20; Doc. #378-8 at 128; Doc. #378-9 at 55).

II. STATEMENT OF THE ISSUES

Defendants raise several arguments on appeal. The principal one is that there was insufficient evidence to convict them of wire fraud, conspiracy to commit wire fraud, aggravated identity theft, and falsification of records. They also contend the district court abused its discretion by using a disjunctive jury charge and denying a motion for mistrial. They claim the trial court erred when it failed to dismiss the aggravated identity theft charges against them and refused to strike the name "Mahmoud" from the Indictment. They argue that during the trial the district courtshould have reopened Franks and Miranda hearings. Finally, they assert the district court clearly erred in calculating a guideline range and that their sentences were unreasonable under 18 U.S.C. § 3553(a). We address each argument below.

III. DISCUSSION

A. The Guilt/Innocence Issues

We begin our discussion with an analysis of the guilt phase issues raised by Defendants. They present a number of arguments. Each is without merit.

1. Wire Fraud

The Scientists assert that there was insufficient evidence of wire fraud to convict them and that the district court erred in refusing to give a conjunctive wire fraud jury instruction. We address each argument, in turn.

a. Sufficiency of the Evidence

The Scientists' central argument on appeal is that the evidence against them is insufficient to support the guilty verdicts for wire fraud and conspiracy to commit wire fraud. Defendants have not advanced any argument that there was no conspiracy. Rather, they attack their conspiracy convictions on the same grounds as the substantive wire fraud convictions. That is, they rely on the same arguments they have launched in challenging the jury's wire fraud verdicts.

We review de novo the sufficiency of the evidence supporting those verdicts, but view the evidence in the light most favorable to the United States. United Statesv. Capers, 708 F.3d 1286, 1296-97 (11th Cir. 2013); United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003). That means we are obliged to resolve any conflicts in favor of the government, draw all reasonable inferences that tend to support the prosecution's case, and assume that the jury made all credibility choices in support of the verdict. United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006). And, we are guided by this polestar: evidence is sufficient to support a conviction if "a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996).

To prove wire fraud under 18 U.S.C. § 1343, the United States must establish that a defendant...