United States of America v. Nayef Yousef

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3842
UNITED STATES OF AMERICA
v.
NAYEF YOUSEF,
Appellant
On Appeal from the District Court
of the Virgin Islands
(D.C. Crim. No. 00-cr-00080-02)
Honorable Raymond L. Finch, Chief Judge
Submitted under Third Circuit LAR 34.1(a)
December 16, 2004
BEFORE: SLOVITER, FUENTES and GREENBERG, Circuit Judges
(Filed: February 22, 2005)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on an appeal of a judgment of conviction
and sentence entered in the District Court of the Virgin Islands on September 9, 2003.
The case arose in the aftermath of a fire at a warehouse used for a furniture business

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operated by appellant Nayef Yousef and by Hashim M. Bazar. As a result of these events
a grand jury indicted Yousef and Bazar on November 21, 2000, on four counts of wire
fraud in violation of 18 U.S.C. §§ 1343 and 2 relating to misrepresentations with respect
to the value of damaged property for insurance purposes. In addition, the indictment
charged Bazar with arson in a fifth count in violation of 18 U.S.C. § 844(i). The district
court tried Yousef and Bazar jointly before a jury on all counts.
The court submitted the case to the jury on a written verdict form which, as to
Yousef, in large letters contained a heading stating “VERDICT FORM for DEFENDANT
NAYEF YOUSEF.” Nevertheless in the body of the form the individual counts intended
to relate to Yousef referred to the defendant as Hashim M. Bazar. Yousef’s attorney
observed the error before the court submitted the form to the jury and brought the error to
the court’s attention. Nevertheless, the court failed to make the correction required to
identify Yousef in the body of the form. The jury convicted Yousef on the first three
counts of the indictment, the court having dismissed the fourth count on the government’s
motion.
After the court denied Yousef’s post-trial motion for a judgment of acquittal, new
trial, and arrest of judgment, it sentenced Yousef to an 18-month term of imprisonment to
be followed by a two-year term of custodial release. The court also fined Yousef. The
custodial sentence was at the bottom of the 18- to 24-month guideline range calculated on
the basis of the Sentencing Guidelines in effect in 2000. The court determined the range

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1The district court had jurisdiction under 48 U.S.C. § 1612 and we have jurisdiction
under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
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after making a 7-level enhancement for the amount of the loss pursuant to U.S.S.G. §
2F1.1(b)(1)(H) and a 2-level enhancement based on more than minimal planning pursuant
to U.S.S.G. § 2F1.1(b)(2)(A). Yousef then appealed.1
Yousef raises three issues on this appeal in his brief:
I. The district court erred in denying appellant’s motion for
judgment of acquittal, new trial and arrest of judgment where the body of
the verdict form intended for appellant and correctly captioned, referred to
co-defendant, Hashim Bazar, denying appellant his due process right to a
fair trial and an independent determination as to his guilt or innocence as
guaranteed by the Fifth Amendment to the Constitution.
II. The district court erred in denying appellant’s Rule 29 motion to
dismiss and post trial motion for judgment of acquittal, new trial and arrest
of judgment where when viewing the evidence in a light most favorable to
the government there was insufficient evidence to find appellant’s guilt
beyond a reasonable doubt on Counts I, II, and III.
III. The Supreme Court’s decision in Blakely v. Washington, 124
S.Ct. 2531 (2004), renders appellant’s guideline sentence unconstitutional
where offense level enhancements for loss pursuant to U.S.S.G. § 2F1.1 §
(b)(1)(H) and for more than minimum planning pursuant to U.S.S.G. §
2F1.1(b)(2)(A) resulted in a longer sentence on the basis of facts that were
not submitted to the jury.
He raises the third issue on a plain error basis as he did not advance it in the district court.
We reject Yousef’s first two contentions and thus will affirm his conviction.
On the verdict form issue Yousef contends that “the jury either never intended to
convict [him] or mistakenly assumed that if Bazar was guilty, so was [he].” Appellant’s
br. at 11. This contention is substantial. In this regard we are at a loss to understand why

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the court did not correct the error before it submitted the form to the jury inasmuch as
Yousef’s attorney requested that it do so. After the trial at the government’s motion the
court did correct the verdict form pursuant to Fed. R. Crim. P. 36 to substitute Yousef’s
name for Bazar’s in the verdict form. Obviously, before submitting the verdict form to
the jury, it could have made the correction without even relying on that rule or, indeed,
any rule. By not doing so it created a problem that never should have existed.
We do not sit, however, to reverse convictions that should be affirmed to send
messages to trial judges to be more careful. Rather, our concern is whether the court
prejudiced Yousef by its error. The government in its brief sets forth a litany of reasons
why the error does not provide a basis for a new trial and we agree with its contentions.
To start with when the jury returned its verdict the foreman orally indicated that it found
Yousef guilty on the three counts on which it convicted him, distinguishing Yousef from
Bazar whom it also convicted on all counts submitted to it. Second, the jury was polled
and the jurors reported their agreement with the verdict. Third, the court instructed the
jury as follows:
You must consider the alleged evidence against each defendant
separately. Evidence admitted against one defendant cannot be used against
another defendant. You must give separate individual consideration to each
charge against each defendant. The fact that you find one defendant guilty
or not guilty of one of the offenses charged should not control your verdict
as to any other offense charged against a defendant, nor as to any offense
charged against any other defendant.
App. at 649. Fourth, the court instructed the jury not to consider evidence against Yousef

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introduced on the arson count in which Bazar was the sole defendant. Finally, the jury
had the indictment during deliberations and the indictment distinguished between the
defendants.
The government cites Government of the Virgin Islands v. Bedford, 671 F.2d 758
(3d Cir. 1982), in support of its position that Yousef is not entitled to a new trial.
Bedford, though somewhat distinguishable from our case on the facts, is an apt citation.
There the defendant had been charged with unlawful possession of a firearm during the
commission of a crime of violence. Nevertheless the court submitted a form to the jury
referring to the offense as possession of a dangerous weapon during the commission of a
crime of violence. In fact, the firearms and dangerous weapon offenses were defined in
separate statutory sections. The jury convicted the defendant who appealed contending
“that he was never charged with the offense he was convicted of and could not prepare
his defense accordingly.” Id. at 763. We rejected his contention as we held that “the
error in the verdict form was merely clerical.” Id. Thus, we upheld his firearm
conviction. After our review of the trial proceedings in this case we have concluded that,
as was the case in Bedford, the defendant was convicted properly and that the mistake
was harmless and was a mere clerical error that could be corrected under Rule 36. See
Fed. R. Crim P. 52(a).
We are satisfied that Yousef’s argument relating to the sufficiency of the evidence
does not require extended discussion and thus we treat it summarily. Indeed, in his brief

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he acknowledges his heavy burden on this point:
This court’s standard of review of a denial of a motion for acquittal
requires that ‘[the court] must determine whether there is substantial
evidence, when viewed in a light most favorable to the government, to
support a jury’s finding of guilt beyond a reasonable doubt. . . .’ A
conviction will be affirmed ‘if a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt.’
Appellant’s br. at 13 (internal citations omitted). Here the evidence clearly satisfied the
government’s burden.
Finally, with respect to Yousef’s third issue relating to sentencing, we will vacate
the sentence imposed, and will remand the matter to the district court for resentencing in
that the sentencing issue he raises best is determined by the district court in the first
instance.
The judgment of conviction entered September 9, 2003, will be affirmed but the
sentence imposed will be vacated and the matter will be remanded to the district court for
resentencing.

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