                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-19-2005

USA v. El-Ghazali
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3117




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  _______________

                                    No. 03-3117
                                  _______________

                          UNITED STATES OF AMERICA

                                          v.

                            JAMIL MOHD EL-GHAZALI
                           a/k/a JAMIL M. ELI GHAZALI
                               a/k/a JAMIL RAHMAN
                          a/k/a JAMIL ABD-EL-RAHMAN

                               Jamil Mohd El-Ghazali,
                                                        Appellant

                                  _______________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                               (D.C. No. 01-cr-00349)
                           District Judge: Louis H. Pollak
                                  _______________

                                Argued May 25, 2004

               BEFORE: ROTH and STAPLETON, Circuit Judges, and
                      SCHWARZER,* Senior District Judge

                            (Opinion Filed July 19, 2005)



      *
       The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.

                                          1
ANNA M. DURBIN (ARGUED)
50 Rittenhouse Place
Ardmore, PA 19003-2276

Counsel for Appellant

PATRICK L. MEEHAN
United States Attorney

EWALD ZITTLAU (ARGUED)
Assistant United States Attorney

LAURIE MAGID
Deputy United States Attorney
for Policy and Appeals

ROBERT A. ZAUZMER
Assistant United States Attorney
Senior Appellate Counsel

615 Chestnut Street
Philadelphia, PA 19106

Counsel for Appellee

                                   _______________

                                      OPINION
                                   _______________

SCHWARZER, Senior District Judge.

             Jamil Mohd El-Ghazali appeals his conviction for making a false statement

in a loan application to the Berks County Bank in violation of 18 U.S.C. §§ 1014 and 2.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction



                                            2
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm the conviction, vacate

the sentence, and remand for resentencing.

                     FACTUAL AND PROCEDURAL HISTORY

              Because we write only for the parties, we recite only those facts that are

necessary for our disposition. The indictment alleged that El-Ghazali falsely answered

“no” to two questions on a Berks County Bank loan application asking whether he was a

defendant in any suits or legal actions and whether he had ever been declared bankrupt.

The jury found El-Ghazali guilty of falsely answering the first question, but acquitted him

on the second. The District Court denied El-Ghazali’s motion for acquittal.

                                       DISCUSSION

I.            SUFFICIENCY OF PROOF OF FDIC-INSURED STATUS

              El-Ghazali first challenges the sufficiency of the evidence that at the time of

the offense the Berks County Bank was an “institution the accounts of which are insured

by the Federal Deposit Insurance Corporation” (“FDIC”). 18 U.S.C. § 1014. The

government offered the testimony of a commercial loan officer employed by the bank at

the time of the alleged offense who testified that the bank’s accounts were insured by the

FDIC throughout the period of his employment. He based his testimony on the fact that

at “each of the teller windows there’s a sticker saying that the deposits are federally

insured up to $100,000.” He added that he was “familiar with the way the [bank]

conducted its business in the ordinary course of affairs.”



                                              3
               “In reviewing the sufficiency of the evidence to sustain a conviction we

review the evidence in the light most favorable to the government as verdict winner.”

United States v. Applewhaite, 195 F.3d 679, 684 (3d Cir. 1999). “We must affirm the

conviction[] if a rational trier of fact could have found [the] defendant guilty beyond a

reasonable doubt, and the verdict is supported by substantial evidence.” Id. (quoting

United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995)).

               18 U.S.C. § 1014 prohibits “mak[ing] any false statement or report . . . for

the purpose of influencing in any way the action of . . . any institution the accounts of

which are insured by the Federal Deposit Insurance Corporation.” Thus, to obtain a

conviction, the government was required to prove beyond a reasonable doubt that Berks

County Bank was insured by the FDIC. “Proof of [FDIC-insured] status is not a mere

formality; it is an essential element of the federal offense . . . . Indeed, federal jurisdiction

depends on this status.” United States v. Platenburg, 657 F.2d 797, 799 (5th Cir. 1981);

see also United States v. Schultz, 17 F.3d 723, 725 (5th Cir. 1994) (same).

              El-Ghazali contends that the evidence was insufficient because the

government failed to offer documentary evidence of FDIC-insured status and the

government witness lacked personal knowledge, offering only conjecture based on the

stickers on the tellers’ windows. We disagree. An FDIC-insured bank is required to

“display at each place of business a sign . . . [stating] that deposits are federally insured to

$100,000.” 12 U.S.C. § 1828(a)(1)(B). Moreover, for the bank to have falsely held itself



                                                4
out as federally insured would have been a criminal offense. 18 U.S.C. § 709 provides, in

relevant part, that “whoever. . . uses the words . . . ‘Federal Deposit Insurance

Corporation’ . . . or otherwise represents falsely by any device whatsoever that. . . its

deposits . . . are insured . . . by the [FDIC] . . . shall be punished [by a fine or

imprisonment].” In light of the statutory scheme, the presence of the required FDIC decal

on the tellers’ windows, which could not be lawfully displayed unless the bank was FDIC-

insured, represents substantial evidence of FDIC-insured status on which the jury could

have relied in reaching its verdict. Cf. United States v. Thomas, 610 F.2d 1166, 1171 (3d

Cir. 1979) (stating that “the word ‘National’ in a bank’s title is virtually conclusive

evidence that the bank is federally chartered” because it would be illegal for a non-

chartered bank to use that word). Thus, this case is distinguishable from Schultz, on which

El-Ghazali relies, where the court stated that an FDIC symbol on a depositor’s check “no

more proves . . that the bank . . . has FDIC insurance than a National Basketball

Association logo on a jacket proves that the wearer is a professional basketball player.” 17

F.3d at 726 n.7. That case did not implicate the statutory scheme requiring a display of a

sign at the bank’s place of business.

II.            SUFFICIENCY OF PROOF THAT EL-GHAZALI’S
               STATEMENT WAS KNOWINGLY FALSE

               The question on the loan application asked, “Are you a defendant in any

suits or legal actions?” At the time when he answered “No,” El-Ghazali knew that serious

felony criminal charges were pending against him in the Philadelphia Court of Common

                                                 5
Pleas. He contends that because there is a history in the courts of disagreement among

reasonable people about the meaning of “suits or legal actions,” and the prosecution did

not introduce evidence of what El-Ghazali understood the phrase to mean, there is

insufficient proof as a matter of law that his answer was “knowingly false.”

              “Normally, it is for the petit jury to decide which construction the defendant

placed on the question. However, . . . if a question is excessively vague or ‘fundamentally

ambiguous,’ then the answer to such question may not, as a matter of law, form the basis

of a . . . false statement prosecution.” United States v. Ryan, 828 F.2d 1010, 1015 (3d

Cri.1987) (citation omitted). A question is fundamentally ambiguous “when it [is] entirely

unreasonable to expect that the defendant understood the question posed to him.” Id.

(quoting United States v. Slawik, 548 F.2d 75, 86 (3d Cir. 1977)).

               The widespread use of the word “action” in both the civil and criminal

context refutes El-Ghazali’s argument that there is disagreement among reasonable people

as to the meaning of “legal actions.” W EBSTER’S T HIRD INTERNATIONAL D ICTIONARY

(1971) defines “action” to include “a judicial proceeding . . . for . . . the punishment of a

public offense.” T HE R ANDOM H OUSE D ICTIONARY OF THE E NGLISH L ANGUAGE (2d ed.

1987) defines “action” as “a proceeding instituted by one party against another.” B LACK’S

L AW D ICTIONARY (7th ed. 1999) defines “action” to include “[a] civil or criminal judicial

proceeding,” citing E DWIN E. B RYANT, T HE L AW OF P LEADING UNDER THE C ODES OF C IVIL

P ROCEDURE 3 (2d ed. 1899), which states that “lawyers usually speak of proceedings in



                                               6
courts of law as ‘actions.’” T HE A MERICAN H ERITAGE D ICTIONARY OF THE E NGLISH

L ANGUAGE (4 th ed. 2000) defines “action” as “[a]judicial proceeding whose purpose is to

obtain relief at the hands of the court.” T HE O XFORD E NGLISH D ICTIONARY (2d ed.1989)

defines the term simply as “[a] legal process or suit.” Dictionary definitions thus attribute

a broad scope to “actions” which would include criminal as well as civil proceedings.

              Court decisions and treatises are to the same effect. According to the

Supreme Court, “[t]he word ‘actions’ may include both civil and criminal proceedings.”

Caha v. United States, 152 U.S. 211, 214 (1894). El-Ghazali cites United States v.

Cleveland, 281 F. 249, 252 (S.D. Ala. 1922), a case that arose under the prohibition laws

in which the judge observed that “the word ‘action’ is not ordinarily used to indicate a

criminal prosecution.” Id. at 253. The Seventh Circuit Court of Appeals rejected that

court’s interpretation in Mason v. United States, 1 F.2d 279 (7th Cir. 1924), however,

stating that the word “action” as used in the statute should not be so narrowly construed.

Id. at 280. The court cited B OUVIER’S L AW D ICTIONARY (Rawle’s 3d ed.), defining

“criminal actions” as “[t]hose actions prosecuted in a court of justice, in the name of the

government, against one or more individuals accused of a crime.” Id. The court also

referred to the various definitions of criminal actions found in W ORDS AND P HRASES. Id.

See also State v. Schomber, 63 P. 221, 222 (Wash. 1900) (stating that “civil and criminal

actions are included within the definition of the term ‘action’”). Finally, C ORPUS J URIS

S ECUNDUM states that “[A] civil action differs from a criminal action primarily in that the



                                              7
former is for the enforcement of a private right . . while the latter is for the punishment of

a public wrong.” 1 A C.J.S. §68a (1985).

              El Ghazali complains that the District Court excluded from evidence certain

Pennsylvania statutory materials offered to support the argument that the loan application

was ambiguous. In its post-trial ruling denying El-Ghazali’s motion for acquittal, the

Court found that it had erred and stated that, had a new trial motion been made, the Court

would have granted it. We disagree. Because El-Ghazali does not claim to have read or

be familiar with these materials, the question is whether their probative effect would have

undermined the jury’s finding that El-Ghazali properly understood the question. The

materials consist principally of excerpts from Title 42, Judiciary and Judicial Procedure.

See 42 Pa.C.S. § 101 et seq. Section 102 defines “action” for purposes of the Judicial

Code as “any action at law or equity.” It does not define “action” as being limited to civil

proceedings. Indeed, Part VII is entitled “Civil Actions and Proceedings,” implying that

“actions” in other contexts may also encompass criminal proceedings. Thus, even if these

materials might properly have been admitted, their exclusion was at most harmless error.

              The application El-Ghazali signed was for a loan of $100,000, not a trivial

transaction. At the time he was the Chief Executive Officer of Shendi Markets in

Willingboro, New Jersey, with an alleged personal net worth of $2,642,100. Viewing the

record in the light most favorable to the government and drawing all reasonable inferences

in support of the verdict, it cannot be said to be “entirely unreasonable to expect that [El-



                                               8
Ghazali] understood the question[ ] posed to him.” Slawik, 548 F.2d at 86.

III.          VALIDITY OF THE SENTENCE

              El-Ghazali was sentenced under then-effective U.S.S.G. §2F1.1. The base

offense level under the guideline was six. To that the District Court applied a seven-level

enhancement under §2F1.1(b)(1)(H) on the basis of its finding El-Ghazali caused a loss of

at least $120,000 but less than $200,000. At the time of the sentencing, the District Court

did not have the benefit of the Supreme Court decision in United States v. Booker,    US ,

125 S.Ct. 738 (2005), holding that mandatory enhancement of a sentence under the

Sentencing Guidelines, based on facts found by the court alone, violates the Sixth

Amendment. 125 S.Ct. at 756. Because El-Ghazali did not preserve the error below, plain

error review applies.

              We held in United States v. Davis, 407 F.3d 162 (3d Cir. 2005)(en banc),

that a defendant’s substantial rights may have been affected where the District Court erred

by treating the Guidelines as mandatory rather than advisory. Id. at 164. We further held

that where mandatory sentencing was governed by an erroneous scheme, prejudice can be

presumed and remand for resentencing is appropriate.. Id. at 165.

              Accordingly we will vacate the sentence and remand for resentencing.

                                   CONCLUSION

              For the reasons stated, we AFFIRM El-Ghazali’s conviction, vacate his

sentence and remand for resentencing.



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