                                        Filed:    November 19, 2012

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                          No. 11-4910(L)
                      (7:10-cr-00067-SGW-1)


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

YOUSSEF HAFEZ ABDELBARY,

               Defendant – Appellant.



                           No. 11-5000
                      (7:10-cr-00067-SGW-1)


UNITED STATES OF AMERICA,

               Plaintiff – Appellant,

          v.

YOUSSEF HAFEZ ABDELBARY,

               Defendant – Appellee.



                            O R D E R


          The Court amends its opinion filed October 31, 2012,

as follows:
          On page 12, line 13 of text -- the date “June 27” is

corrected to read “June 21.”

                                   For the Court – By Direction


                                       /s/ Patricia S. Connor
                                                 Clerk




                               2
                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4910


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

YOUSSEF HAFEZ ABDELBARY,

                Defendant – Appellant.



                               No. 11-5000


UNITED STATES OF AMERICA,

                Plaintiff – Appellant,

           v.

YOUSSEF HAFEZ ABDELBARY,

                Defendant – Appellee.



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:   September 21, 2012             Decided:   October 31, 2012


Before SHEDD, KEENAN, and THACKER, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, and
remanded by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Keenan and Judge Thacker joined.


ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant/Cross-Appellee.  Joseph W. H.
Mott, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia,
for Appellee/Cross-Appellant.   ON BRIEF: Timothy J. Heaphy,
United States Attorney, Terrance Jones, Third Year Law Intern,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee/Cross-Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

     A jury convicted Youssef Abdelbary of wire fraud, money

laundering, currency structuring, bankruptcy fraud, and perjury.

After    trial,   the    district      court      granted     Abdelbary’s         Rule    29

motion for judgment of acquittal on the wire fraud and money

laundering    convictions.            Abdelbary      raises     various        issues     on

appeal,    including         the    sufficiency      of   the       evidence      on     the

currency structuring convictions and the order of restitution of

attorney’s     fees     to    Jordan       Oil    Company,    Inc.,       a    victim     of

Abdelbary’s crimes.            The Government cross-appeals the district

court’s   granting      of    the    Rule    29    motion.      For    the      following

reasons, we affirm the currency structuring convictions, reverse

the judgment of acquittal on the wire fraud and money laundering

counts, vacate the award of restitution, and remand.



                                            I.

                                            A.

     Youssef      Abdelbary        owned    and   operated      a   gas       station    and

convenience store in Dublin, Virginia.                       Abdelbary leased the

property and bought the gas he sold from Jordan Oil. 1                                 While

running this business, Abdelbary used a branch of the Carter

     1
       Between the time he opened the store in 2003 and 2006,
Abdelbary dealt with a company affiliated with Jordan Oil. From
September   2006,  Abdelbary   dealt  with   Jordan  Oil.      For
simplicity, we refer to both of these companies as Jordan Oil.



                                             3
Bank and Trust in Christiansburg, Virginia, where he made more

than one hundred transactions, each involving more than $10,000.

At the time of the first deposit of this size, Ralph Stewart, a

local manager for Carter Bank and Trust, explained to Abdelbary

about the currency transaction reports (“CTRs”) that had to be

filed on a transaction involving more than $10,000.

      Abdelbary’s relationship with Jordan Oil grew contentious

in late 2007 and early 2008.                     When Abdelbary failed to make a

payment due to Jordan Oil in early February 2008 for gas it had

delivered,       Jordan       Oil       ceased       its     deliveries         to    Abdelbary.

Jordan     Oil    sued      soon     thereafter         to    collect         the     money       that

Abdelbary owed, which totaled about $250,000.                                   The following

day, Abdelbary began withdrawing currency in amounts less than

$10,000.          Over      the      next     eight         days,    Abdelbary           withdrew

$59,879.31       from       his     account      in        eleven    transactions.                The

litigation against Jordan Oil continued through the spring of

2008.      Eventually, at the end of May, this litigation concluded

when Jordan Oil obtained a final judgment against Abdelbary for

$247,759.79 and Abdelbary’s counterclaim was dismissed.

      The next month, Abdelbary engaged in a series of credit

card transactions in which he charged his personal credit cards

at   his   store       in   multiple      equal       amounts       in    a    span    of     a   few

minutes.         The    value      of    these       purchases      was       credited      to    the

account at Carter Bank and Trust that Abdelbary used for his


                                                 4
business, and he then withdrew this money, totaling $52,350,

from that account in amounts less than $10,000.

      Abdelbary     met    with       a    bankruptcy       attorney    in    July    2008.

Abdelbary initially told this bankruptcy attorney that he wanted

to get back at Jordan Oil, but Abdelbary eventually concluded

that he would file for bankruptcy.                    When Abdelbary submitted his

bankruptcy filing, he denied having made any gifts within one

year or having transferred any property within two years of the

filing.       Additionally,           Abdelbary       stated    at     the    bankruptcy

creditors’ meeting that he had not transferred any assets to a

family member.         Despite these statements, Abdelbary had sent

$76,000 to his brother in Egypt during those previous two years.

                                              B.

        Based on these events, Abdelbary was charged in a twenty-

count    indictment       with    wire       fraud,    18    U.S.C.    §     1343,    money

laundering,    18     U.S.C.      §       1956(a)(1)(B)(i)      and    (ii),      currency

structuring,     31   U.S.C.      §       5324(a)(1)     and   (3)     and    §   5324(d),

bankruptcy fraud, 18 U.S.C. § 152(3), and perjury, 18 U.S.C. §

1623.    A jury convicted Abdelbary on all counts.

      After the jury returned its verdict, the district court

granted Abdelbary’s Rule 29 motion for judgment of acquittal on

the wire fraud and money laundering counts.                       The district court

read the indictment as requiring the Government to prove beyond

a   reasonable    doubt     that          Abdelbary    incurred      the     credit   card


                                              5
charges in June 2008 with the intention of filing for bankruptcy

and thus not repaying those companies.                       The district court held

that   the   Government      had    not    met        this    burden   and       therefore

dismissed those counts of the indictment.

       At sentencing, the district court sentenced Abdelbary to

twenty-four    months   in    prison.           The    court     entered     a    criminal

forfeiture judgment against Abdelbary for $112,229.31 and also

ordered Abdelbary to pay restitution to Jordan Oil of $84,079.35

for attorney’s fees incurred during the bankruptcy proceeding.

The district court cited both the voluntary, 18 U.S.C. § 3663,

and mandatory, 18 U.S.C. § 3663A, restitution provisions during

the hearing without ever specifying the provision on which it

was relying.



                                          II.

       We turn first to Abdelbary’s claim that the evidence was

insufficient     to     support       the         convictions          for        currency

structuring.    When a defendant challenges the sufficiency of the

evidence to support his conviction, he “bears a heavy burden.”

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)

(internal     quotation      mark     omitted).                 “In    reviewing       the

sufficiency of the evidence supporting a criminal conviction,

our role is limited to considering whether ‘there is substantial

evidence, taking the view most favorable to the Government, to


                                           6
support it.’”           Id. (quoting Glasser v. United States, 315 U.S.

60, 80 (1942)).              The conviction must be upheld if, drawing all

reasonable        inferences            in     favor            of     the     Government,             “any

reasonable trier of fact could have found [the defendant] guilty

beyond a reasonable doubt.”                     United States v. Allen, 491 F.3d

178, 185 (4th Cir. 2007) (alteration in original).                                            Ultimately,

“[r]eversal for insufficient evidence is reserved for the rare

case ‘where the prosecution’s failure is clear.’”                                         Beidler, 110

F.3d at 1067 (quoting Burks v. United States, 437 U.S. 1, 17

(1978)).

         Under    31    U.S.C.      §    5324(a),               a    person        cannot      structure

currency     transactions          in        such       a   way       to     avoid      the     reporting

requirements of 31 U.S.C. § 5313(a) or § 5325.                                            Federal law

criminalizes           two    types      of     structuring.                      The    first       type,

imperfect        structuring,           is     prohibited               by    §      5324(a)(1)        and

proscribes conduct designed “to defeat the bank’s responsibility

to report.”        United States v. Peterson, 607 F.3d 975, 980 (4th

Cir. 2010).        The second type, perfect structuring, is prohibited

by   §    5324(a)(3)         and   criminalizes                 conduct       designed         “to   avoid

triggering the bank’s duty to report.”                                Id.     The Government must

prove     three    elements        to    support            a       conviction       under      either   §

5324(a)(1) or § 5324(a)(3):                    (1) the defendant knowingly engaged

in   structuring;            (2)   the        defendant               knew     of       the    reporting

requirements       under       federal         law;         and      (3)     the    purpose       of    the


                                                    7
transaction was to evade the requirements.                         United States v.

$79,650.00 Seized from Bank of Am. Account Ending in 8247                              at

Bank of Am., 7400 Little River Tpk., Annandale, Virginia, in the

Name of Girma Afework, 650 F.3d 381, 384 (4th Cir. 2011) (citing

the instructions of the trial judge without criticism); see also

United States v. MacPherson, 424 F.3d 183, 189 (2d Cir. 2005).

       Abdelbary      was    charged     with     three        counts     of    imperfect

structuring and two counts of perfect structuring based on the

withdrawals from February and June 2008.                       Given our deferential

standard       of   review,    we    hold       that     the     Government       offered

sufficient evidence at trial from which a reasonable juror could

have found Abdelbary guilty.              First, Abdelbary clearly engaged

in structuring.        He made eleven withdrawals in amounts less than

$10,000 in February, totaling $59,879.31.                      J.A. 1904.        Then, in

June, Abdelbary again made eleven withdrawals in amounts less

than $10,000, this time totaling $52,350.

       Turning to the second element, the Government was required

to prove that Abdelbary knew of the reporting requirements under

federal     law.        Despite     Abdelbary’s          contention,       the     record

provides sufficient evidence from which a reasonable juror could

find    that    the    Government      met      its    burden.          Ralph     Stewart

testified that he told Abdelbary about the CTRs and the filing

requirements.         J.A. 87.      Although Stewart never testified that

he   told   Abdelbary       explicitly    that     the    CTRs     were    required    by


                                            8
federal law and sent to the government, such testimony is not

required for the jury to have convicted Abdelbary. 2                                   Carter Bank

and Trust had filed 135 CTRs based on Abdelbary’s transactions

before Abdelbary abruptly began a new pattern of withdrawals

involving        less       than       $10,000.          This    attempt    to     hide    illegal

activity is itself evidence that Abdelbary knew his conduct was

illegal.          See       Beidler,         110    F.3d    at    1069     (“[W]e       hold   that

evidence that a defendant has structured currency transactions

in   a       manner    indicating            a   design    to    conceal     the       structuring

activity itself, alone or in conjunction with other evidence of

the defendant’s state of mind, may support a conclusion that the

defendant knew structuring was illegal.”).                               That Abdelbary may

not have been as sophisticated a businessman or developed as

complex a scheme to avoid the reporting requirement as other

people        convicted         of     currency     structuring       does       not    mean   that

Abdelbary was not engaged in illegal structuring.                                       See, e.g.,

MacPherson,           424       F.3d    at       194–95    (discussing       the       defendant’s

background        as        a    businessman);            Beidler,    110        F.3d     at   1070


         2
       Stewart testified that the CTR requirements have existed
since the 1970s and that he tells customers about “the CTR
filing requirements . . . as a routine matter.” J.A. 87. From
this testimony, a reasonable juror could have inferred that this
conversation    included   Stewart    mentioning    that   these
“requirements” were imposed by federal law.    Nevertheless, the
record contains sufficient evidence to convict Abdelbary even
without this inference.




                                                     9
(discussing the defendant’s use of different branches of a bank

to hide his transactions). 3

      Finally,       the    third       element—that       the   purpose       of   the

transactions       was      to      avoid     the     reporting     requirement—is

established    by     the     same      evidence    that   satisfied     the    second

element.       The     fact      that     Abdelbary    began     this    pattern    of

withdrawals       below       the    $10,000        threshold     only     after     he

encountered serious financial difficulty based on the dispute

with Jordan Oil supports the conclusion that his purpose was to

avoid the reporting requirements in order to hide his assets.

See id. (discussing how a defendant’s behavior can be evidence

of   his   intent).         Therefore,       the    record    contains    sufficient

evidence to uphold the convictions on the currency structuring

counts.



                                            III.

      We   next      address     the      Government’s       cross-appeal      of   the

district court’s decision to grant Abdelbary’s Rule 29 motion on

the wire fraud and money laundering counts.                      When we review a

      3
       Abdelbary argues that the Government admitted during its
closing argument that Abdelbary did not know who gets the
report.   This statement is not an admission that Abdelbary was
unaware of the legal reporting requirement. Read in the context
of the defense’s closing argument, this statement was simply an
admission that Abdelbary did not know whether Jordan Oil could
access the CTRs. J.A. 301–02, 314–15.




                                             10
district         court’s       decision      to     grant   a       motion     for    judgment    of

acquittal, we must reverse the district court’s decision and

reinstate the jury verdict “if there is substantial evidence,

taking the view most favorable to the Government, to support

[the jury verdict].”                    United States v. Mitchell, 177 F.3d 236,

238 (4th Cir. 1999) (quoting United States v. Steed, 674 F.3d

284,       286    (4th       Cir.       1982)).      Wire   fraud        has    “two       essential

elements: (1) the existence of a scheme to defraud and (2) the

use    of    .     .    .    [a]    wire    communication           in   furtherance         of   the

scheme.”          United States v. Curry, 461 F.3d 452, 457 (4th Cir.

2006).           Money laundering has four elements: (1) the defendant

conducted          or       attempted       to    conduct       a    financial        transaction

related to interstate commerce; (2) the transaction involved the

proceeds of specified unlawful activity; (3) the defendant knew

that       the    proceeds         were    from     unlawful        activity;        and    (4)   the

defendant knew that the transaction was designed, at least in

part,       to    conceal          or    disguise    the    proceeds         of      the    unlawful

activity.          United States v. Wilkinson, 137 F.3d 214, 221 (4th

Cir. 1998). 4




       4
       The money laundering charges were predicated on the wire
fraud. The parties’ arguments focus on the wire fraud charges,
so we focus on that issue as well.        The money laundering
convictions thus stand or fall based on the outcome of the wire
fraud convictions.




                                                  11
      We   agree   with   the   Government   that   the   record    contains

sufficient evidence to uphold the convictions.            Assuming without

deciding    that   the    district   court   properly     interpreted    the

indictment, 5 the record contains sufficient evidence from which a

reasonable juror could have found that Abdelbary planned to file

for bankruptcy at the time he incurred the credit card charges

in June 2008.      In that month, Abdelbary made a series of rapid

purported purchases in his convenience store with his personal

credit cards.      For example, on June 12, he charged $7,500 in

fifteen $500 increments, all during a nine-minute span.                 J.A.

188–89, 1906.      Two days later, Abdelbary charged $22,700, also

in $500 increments, during a twenty-six minute span.             J.A. 1906–

07.   Then, on June 21, Abdelbary again charged his credit cards

in rapid succession, this time taking fourteen cards over their

limit and two others to their limit.          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

never made payments on any of this credit card debt. 6


      5
       The Government also argues that the district court read
the indictment too narrowly.    Because we decide this issue on
another ground, we do not address this argument.
      6
       Abdelbary notes that he previously paid his credit card
bills, J.A. 217–18, and that payments stopped only after Jordan
Oil levied its May 2008 judgment against Abdelbary’s bank
account,   J.A.  2005.      Although  this   is   one  possible
interpretation of what happened, it is not the only one.    The
(Continued)

                                     12
       Less than a month later, in the middle of July, Abdelbary

met with a bankruptcy attorney.                  According to the bankruptcy

attorney, in their first meeting, Abdelbary told the attorney

that   he   wanted     to    sue   Jordan    Oil    again,       not    to    file       for

bankruptcy.      J.A. 102.         But the jury was free to reject this

testimony as incredible, especially in light of other testimony

in this case.        For example, Abdelbary proceeded to provide false

information     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.

1944–45, and to lie at the creditors’ meeting about whether he

transferred assets to family members, J.A. 350.                        Abdelbary also

hid other assets during the bankruptcy proceedings, including

$20,000 in currency in his house that was discovered only during

the execution of a search warrant.                  J.A. 210.           Additionally,

Abdelbary also never disclosed to the bankruptcy trustee that he

had received $49,590 from family in Egypt in the spring of 2009,

while the bankruptcy proceeding was pending.                 J.A. 1902.

       Taken   together,       this     evidence      is     sufficient            for    a

reasonable     juror    to   conclude     that     Abdelbary      used       his   credit




jury could reasonably conclude, based on all of the evidence,
that Abdelbary was not intending to pay the credit card bills
when he incurred those charges.




                                        13
cards in June 2008 with the intent of ultimately filing for

bankruptcy.       He engaged in a series of rapid credit card charges

at    his   convenience      store,       never   made     any   payments      on   those

charges, met with a bankruptcy attorney soon thereafter, and

then filed for bankruptcy, during which he lied about his assets

on multiple occasions.             Viewed in the light most favorable to

the   Government,        this    evidence    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.            See Mitchell, 177 F.3d at 240.



                                            IV.

       Finally, we address the issue of the restitution award.

The    district    court        ordered     Abdelbary      to    pay   $84,079.35      in

restitution to Jordan Oil for attorney’s fees related to the

bankruptcy proceeding.              A district court’s decision to award

restitution is reviewed for abuse of discretion.                         United States

v. Leftwich, 628 F.3d 665, 667 (4th Cir. 2010).

       Federal         law      provides      two      forms      of      restitution,

discretionary          restitution        under      the    Victim       and     Witness

Protection       Act     (“VWPA”),     18     U.S.C.       § 3663,     and     mandatory

restitution under the Mandatory Victim Restitution Act (“MVRA”),


                                            14
18 U.S.C. § 3663A.          These are two different restitution schemes,

and each scheme requires the district court to make specific

factual    findings.         Under   the     VWPA,    the   district          court    must

determine “the financial resources of the defendant,” as well as

consider    any     other     “appropriate”          factors.            18    U.S.C.    §

3663(a)(1)(B)(i)(II).          Under the MVRA, the district courts must

set a payment schedule based on findings about the defendant’s

financial    resources,       projected      earnings,      and     other      financial

obligations.        18 U.S.C. § 3664(f)(2); see also Leftwich, 628

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

hearing at which the district court ordered restitution, the

district court referenced § 3663, J.A. 2356, 2358, 2378; yet,

when the district court imposed the restitution award, the court

said it was imposing “mandatory restitution,” J.A. 2379.

      Recently, this Court faced a similar situation in which a

district court failed to specify whether restitution was based

on the VWPA or the MVRA.                See Leftwich, 628 F.3d at 668–69.

There, we noted that “[i]n light of the substantially different

requirements      of   the    MVRA   and     the    VWPA,    the    failure      of     the

district    court      to    indicate      which     statute       it    was    applying

prevents this Court from effectively conducting appellate review

of the district court’s exercise of discretion.”                        Id.


                                           15
      Therefore,   consistent   with     Leftwich,     we   vacate    the

restitution award and remand the case for further proceedings at

which the district court can identify which act it is applying

and can make the factual findings required by that act.



                                 V.

      Based on the foregoing, we affirm Abdelbary’s conviction

for   currency   structuring.   We     reverse   the   district   court’s

judgment of acquittal on the wire fraud and money laundering

convictions and remand for reinstatement of the jury verdict and

entry of judgment against Abdelbary.         Finally, we vacate the

award of restitution and remand the case to the district court

for proceedings consistent with this opinion. 7



                                AFFIRMED IN PART, REVERSED IN PART,
                                      VACATED IN PART, AND REMANDED




      7
       We have examined the remaining issues that             Abdelbary
raises in his brief and find them to be without merit.



                                 16
