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United States v. Al-Ame

January 17, 2006

UNITED STATES OF AMERICA
v.
ALI B. AL-AME, APPELLANT



Appeal from the United States District Court for the District of New Jersey. (D.C. Criminal Action No. 02-cr-00402). District Judge: Honorable John C. Lifland.

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) November 15, 2005

Before: BARRY, and AMBRO, Circuit Judges, POLLAK*fn1, District Judge.

OPINION OF THE COURT

Ali B. Al-Ame appeals from his conviction in the United States District Court for the District of New Jersey for conspiracy to commit mail fraud in violation of 18 U.S.C. § 371. He contends, inter alia, that the mailing at issue was not in furtherance of the fraud and therefore his conduct does not qualify as mail fraud as defined in 18 U.S.C. § 1341. For the reasons that follow, we affirm the judgment of conviction.

I. Facts and Procedural History

Al-Ame is one of over 60 individuals who have been prosecuted for their roles in a conspiracy to defraud the Educational Testing Service ("ETS"), a nonprofit testing organization headquartered in New Jersey. Among the many standardized tests developed and administered by ETS is the Test of English as a Foreign Language ("TOEFL"). Many U.S. colleges and universities require that foreign students take the TOEFL to demonstrate English proficiency, and therefore passing it is essential for many foreign students who wish to study at post-secondary educational institutions in the United States.

The conspiracy involved several dozen foreign students of Arab or Middle Eastern descent who entered into a scheme whereby they paid imposters to take the TOEFL for them. The imposters' scores were subsequently reported to colleges and universities as the students' own. Al-Ame, a foreign student enrolled at a community college in the State of Washington, paid an imposter to take the TOEFL in Al-Ame's name at a testing site in San Diego, California. On November 5, 2001, the imposter went to the testing site and presented false identification stating that he was Al-Ame. ETS accepted the imposter's identification and, in accordance with the testing rules, photographed the imposter, had him sign a confidentiality agreement, and admitted him to the test. At Al-Ame's direction, the imposter instructed ETS to mail the test results to Al-Ame's home address. Consistent with these instructions, ETS mailed the results from New Jersey to Al-Ame's address in Washington, where Al-Ame intended to replace the imposter's photograph with his own and then send the results to his college.

In May 2002 the Government indicted Al-Ame on one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371. The Government filed a superseding indictment in October 2002 charging the same offense. Al-Ame waived his right to a jury trial and stipulated to the relevant facts.He argued that (1) ETS's property rights in its test were not compromised as a result of his fraud, and (2) its act of mailing the test results to him was not in furtherance of the conspiracy and therefore did not constitute mail fraud under 18 U.S.C. § 1341. The District Court rejected these arguments and, based on the stipulated facts, found Al-Ame guilty of conspiracy to commit mail fraud. The Court sentenced him to two years probation and a $1,000 fine.

We disposed of Al-Ame's first objection in United States v. Hedaithy, 392 F.3d 580 (3d Cir. 2004), a case involving two of Al-Ame's co-conspirators. We held that the scheme "interfered with ETS's efforts to keep its test confidential" and "defraud[ed] ETS of traditionally recognized property interests in its confidential business information and TOEFL score reports." Id. at 595, 601. Al-Ame therefore presses only the second objection that ETS's act of mailing the test results to him was not in furtherance of the conspiracy.

II. Jurisdiction and Standard of Review

The District Court had subject matter jurisdiction over this case pursuant to 18 U.S.C. § 3231, and we have jurisdiction over the appeal under 28 U.S.C. § 1291. In its brief, the Government notes its uncertainty as to whether Al-Ame is challenging the sufficiency of the superseding indictment's allegations of mail fraud or the sufficiency of the evidence of mail fraud produced at trial. Review of the former is plenary, seeHedaithy, 392 F.3d at 590 n.10 (citing United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002)), while review of the latter is subject to a deferential standard of review under which we construe all evidence in favor of the Government and will only reverse if "[no] reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hedaithy, 392 F.3d at 605. Because ...


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