Amin Rashid v. Warden Philadelphia FDC

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FUENTES, GREENAWAY JR. and VANASKIE, Circuit Judges. Total Pages: 7. CLD-190

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CLD-190

Date Filed: 06/11/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 14-3988
____________
AMIN A. RASHID,
Appellant
v.
WARDEN PHILADELPHIA FDC
__________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cv-05313)
District Judge: Jan E. DuBois
__________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 7, 2015
Before: FUENTES, GREENAWAY, JR., and VANASKIE, Circuit Judges
(Filed: June 11, 2015)
____________
OPINION*
____________

PER CURIAM

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
*

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Amin A. Rashid appeals from an order of the District Court denying his petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons that follow, we
will summarily affirm.
Rashid was convicted in the United States District Court for the Eastern District of
Pennsylvania in December, 1993 of wire fraud, mail fraud, money laundering, and
laundering proceeds, in a scheme that involved defrauding 47 persons of at least $1.6
million. The Indictment stated that Rashid used aliases and corporate entities that he
owned, including Amin A. Rashid and Associates (“AAR”) and SEMCO Capital
Corporation (“SEMCO”), to defraud potential borrowers. Specifically, the Indictment
charged that he solicited customers seeking sizable commercial loans, and that he signed
“consulting agreements” with those customers obligating him to use his “best efforts” to
secure financing from an alleged lending source, usually one of the corporate entities he
owned, such as SEMCO. The Indictment also charged that he, through SEMCO or
another corporate entity he owned, then required payment of “advance fees” for financing
that he did not intend to obtain. Rashid was sentenced in May, 1994 to a term of
imprisonment of 168 months, to be followed by a 3-year term of supervised release. We
affirmed the criminal judgment on August 4, 1995 in United States v. Rashid, C.A. No.
93-2241.
In November, 1995, Rashid filed a motion pursuant to 28 U.S.C. § 2255,
challenging the conviction and sentence. The motion was denied in February, 1996, and
we affirmed in December, 1996, United States v. Rashid, C.A. No. 96-1244. After that,
Rashid filed numerous challenges to his conviction and sentence, all of which were
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unsuccessful. Rashid was released from custody in September, 2005 to his term of
supervised release.
While on supervised release, Rashid engaged in conduct which led to a new
indictment on two counts of mail fraud and one count of aggravated identity theft in the
United States District Court for the Eastern District of Pennsylvania, United States v.
Rashid, D.C. Crim. No. 08-cr-00493. In May, 2009, a Superseding Indictment charged
Rashid with ten counts of mail fraud, eight counts of aggravated identity theft, and one
count of passing an altered postal money order. The Superseding Indictment alleged that
Rashid defrauded clients of his company, the Center for Constitutional and Criminal
Justice, by accepting fees to stop or reverse Sheriff’s sales, or to recover proceeds from
Sheriff’s sales, while in fact performing none of these services. Rashid also stole his
clients’ identities. Following a jury trial, Rashid was convicted of nine counts of mail
fraud and eight counts of aggravated identity theft. Rashid was sentenced in July, 2013
to a total term of imprisonment of 240 months, to be followed by 5 years of supervised
release. We affirmed the criminal judgment on November 25, 2014, United States v.
Rashid, 593 F. App’x 132 (3d Cir. 2014).
As a result of his most recent convictions, the United States Probation Office
charged Rashid with violating the conditions of his 1994 term of supervised release. In
response, Rashid filed a petition for writ of habeas corpus, 28 U.S.C. § 2241, again
challenging his 1993 conviction and sentence. Rashid argued that United States v.
Santos, 553 U.S. 507 (2008), rendered his money laundering conduct non-criminal.
Specifically, Rashid argued that his convictions should be vacated because Santos
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requires that laundered “proceeds” be derived from criminal profits, and his convictions
were based on the use of the laundered proceeds to pay the expenses of his crimes, such
as rent and employee salaries. During closing arguments, the Government argued to the
jury that it had proven money laundering beyond a reasonable doubt because “money
received from a victim” was used “to pay the salaries of SEMCO employees,” N.T.,
12/23/93, at 49, and that Rashid used “accounts not only of SEMCO, but of [AAR] to pay
for the office and the office rent for the other company that he controlled, Capital
Guarantee,” id. at 48. In an order entered on August 22, 2014, the District Court denied
Rashid’s § 2241 petition on the merits, and later denied a timely motion for
reconsideration in an order entered on September 12, 2014.
Rashid appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk granted
him leave to appeal in forma pauperis and advised him that the appeal was subject to
summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary action under Third Cir.
LAR 27.4 and I.O.P. 10.6. We previously denied Rashid’s emergency motion to stay a
revocation hearing that had been scheduled for April 16, 2015 in the District Court.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. As
explained by the District Court, Santos does not render Rashid’s money laundering
conduct non-criminal. In Santos, the Supreme Court reviewed the money laundering
convictions of two defendants for their role in operating an illegal lottery. 553 U.S. at
509-10 (plurality opinion). At issue was whether “proceeds” under 18 U.S.C. § 1956
applied only to profits of unlawful activity, rather than receipts. Finding the undefined
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term ambiguous, a four-Justice plurality applied the rule of lenity, resulting in its
conclusion that “proceeds” should be defined as “profits.” Id. at 514. The plurality also
explained that interpreting “proceeds” to mean receipts would create a “merger problem”
because “nearly every violation of [an] illegal-lottery statute would also be a violation of
the money-laundering statute.” Id. at 515 (internal quotation marks omitted). Concurring
in the judgment, Justice Stevens agreed that receipts from an illegal gambling business
were not “proceeds” within the meaning of the money laundering statute and agreed that
such an interpretation would create a “merger” problem. Id. at 527-28 (Stevens, J.,
concurring in the judgment).
The District Court began its discussion in Rashid’s case by correctly noting that,
when no single rationale explaining the result enjoys the assent of five Justices, as was
the case in Santos, the holding of the case is limited to the narrowest ground supporting
the result, Marks v. United States, 430 U.S. 188, 193 (1977). The District Court then set
forth the elements of mail and wire fraud, and stated that the issue in Rashid’s case was
whether “proceeds” means “profits from the artifice or scheme to defraud,” or instead
means “profits from use of the mail or an interstate wire communication.” United States
v. Rashid, 39 F. Supp.3d 649, 653 (E.D. Pa. 2014). The Court held that, in Rashid’s case,
proceeds means profits from the mail and wire fraud, explaining that:
In this case, the “unlawful activity” that generated the laundered “proceeds”
was mail and wire fraud. Mail and wire fraud are completed crimes when
the mail or wire communication is sent. Thus, the “essential expenses” of
mail and wire fraud are costs incurred in sending mail or interstate wire
communications, not, as defendant argues, the expense of maintaining the
scheme or artifice to defraud. By paying the expenses of his artifice or
scheme to defraud, through payment of salaries and rent, [Rashid]
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laundered profits from completed mail and wire fraud to facilitate future
crimes.
Id. at 654 (citations and footnote omitted).
We agree with the District Court’s analysis. Here, the payments were not essential
elements of the completed fraud offenses and there is no merger problem. The
Government was not required to prove that the transactions at issue (payment of salaries
and rent) involved net profits. “Proceeds” means “net profits” only where a merger
problem increases a defendant’s sentencing exposure in a way that Congress could not
have intended.1 As the District Court noted in the margin, under Rashid’s interpretation
of Santos, “the proponent of a pyramid scheme charged with mail or wire fraud could
never be prosecuted for money laundering because a pyramid scheme is premised on
making the artifice or scheme to defraud appear profitable when, in fact, it is not.” Id. at
654 n.1.
The District Court also summarily denied as meritless Rashid’s claim that an
amendment to his Indictment caused it to expire, and dismissed for lack of jurisdiction
pursuant to 28 U.S.C. § 2255(h) and § 2244(b)(3)(A) a claim that the loss issue should
have been determined by a jury. We summarily affirm these determinations, which do
not require discussion.

Section 1956 now defines “proceeds” as “any property derived from or obtained or
retained, directly or indirectly, through some form of unlawful activity, including the
gross receipts of such activity.” 18 U.S.C. § 1956(c)(9). See also United States v.
Richardson, 658 F.3d 333, 339 n.4 (2011). At the time Rashid was indicted, however, the
term “proceeds” was undefined. The statutory definition thus does not apply here.
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For the foregoing reasons, we will summarily affirm the orders of the District
Court denying Rashid’s § 2241 petition and subsequent motion for reconsideration.

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