United States 8th Circuit Court of Appeals Reports

U.S. v. RASTEGAR, 06-1634/2605 (8th Cir. 1-8-2007) United
States of America, Appellee, v. Abdolhossein Rastegar, also
known as Cyrus Rastegar, Appellant. Nos. 06-1634/2605.
United States Court of Appeals, Eighth Circuit. Submitted:
October 17, 2006. Filed: January 8, 2007.

Appeal from the United States District Court for the
Eastern District of Missouri.

Before SMITH, BOWMAN, and COLLOTON, Circuit Judges.

BOWMAN, Circuit Judge.

Following a bench trial, the District Court[fn1] found
Abdolhossein Rastegar guilty of using a social security
number (SSN) obtained from the Social Security
Administration (SSA) on the basis of false information to
intentionally deceive the Internal Revenue Service (IRS).
42 U.S.C. § 408(a)(7)(A). Rastegar appeals, arguing
that there was insufficient evidence to prove that he
intended to deceive the IRS or that the Social Security
Administration (SSA) assigned him an SSN on the basis of
false information he provided to the agency. We affirm.

Rastegar was born in Iran on March 21, 1957, and came to
the United States in 1976 to attend the University of
Louisville. On October 13, 1976, Rastegar applied for an
SSN, listing in the application the date and country of his
birth; the name shown on his Iranian birth certificate,
“Abdolhossein Rastegar”; and the names of his parents,
“Abdolkarim Rastegar” and “Ehtram Azadi.” The SSA assigned
Rastegar the SSN 404-XX-XXXX (SSN 404).[fn2] After
completing his freshman year at Louisville, Rastegar
transferred to the University of Missouri-Rolla. Rastegar
applied for a Missouri driver’s license listing SSN 404 in
his application, and the Missouri Department of Revenue
adopted SSN 404 as Rastegar’s driver’s license number.

Rastegar’s student visa expired upon his graduation from
the university, but he did not leave the country. Instead,
Rastegar moved to St. Louis, Missouri, and began working
for various employers, including the Pattonville and
Hazelwood school districts. Rastegar provided SSN 404 to
his employers for wage-reporting purposes.

In 1990, Rastegar became a permanent legal resident of the
United States under the Immigration Reform and Control Act
of 1986, which granted amnesty to illegal aliens who could
establish that they had resided in the country continuously
since January 1, 1982. See Public. L. 99-603, Title II,
§ 201(a), 100 Stat. 3394 (codified at 8 U.S.C.
§ 1255a). On April 20, 1990, Rastegar applied for a
new SSN. Rastegar testified before the District Court that
he believed he had to obtain a new SSN once he regained
legal status in the United States. In his 1990 application,
Rastegar listed his name as “Cyrus H. Rastegar” and
indicated that his full name at birth was “Hossein Cyrus
Rastegar.” Rastegar provided the same birth date and
country as he provided in his 1976 application, but he gave
a different spelling for his mother’s name —
“Ehteram Azad.” When asked specifically in the application
form whether he had previously been assigned an SSN,
Rastegar answered that he had not. When instructed in the
application to list any SSNs previously assigned, Rastegar
left the line blank. Based on the information Rastegar
provided in his 1990 application, the SSA assigned Rastegar
another SSN: 486-XX-XXXX (SSN 486).

During 1991 and 1992, Rastegar continued his part-time
employment with the Pattonville and Hazelwood school
districts, but Rastegar did not provide these employers
with his new SSN. Consequently, the school districts
continued to report Rastegar’s income for these years under
SSN 404. Later in 1992, Rastegar accepted a position with
the Illinois Environmental Protection Agency and moved to
Springfield, Illinois, where he lived from 1992 to 1999.
Rastegar obtained an Illinois driver’s license in the name
of “Cyrus H. Rastegar.” Unlike Rastegar’s Missouri driver’s
license, his Illinois driver’s license did not use his SSN
as his driver’s license number, and Rastegar could not
recall at trial whether he was required to provide an SSN
in his Illinois driver’s-license application. Although he
had relocated to Illinois and obtained an Illinois driver’s
license, Rastegar maintained his residence in Missouri, and
he repeatedly renewed the Missouri driver’s license issued
to him under SSN 404. Rastegar testified that he knew he
should have surrendered his Missouri driver’s license when
he obtained his Illinois driver’s license, but did not do
so.

Rastegar left the Illinois EPA in 1999 to focus his energy
on a car-sales business he had been conducting as a
part-time endeavor for some years. In order to carry on
this business, Rastegar had obtained a Missouri wholesale
license in the 1980s under SSN 404. In 1998, however,
Rastegar determined that possessing a dealer’s license, as
opposed to a wholesale license, would simplify his business
transactions. Rastegar contacted a business associate in
Alabama to assist him in obtaining an Alabama dealer’s
license. In connection with his application for the Alabama
dealer’s license, Rastegar applied for an Alabama driver’s
license, using SSN 486 and listing as his residence an
address in Benson, Alabama, at which he admittedly did not
live. In March 1999, Rastegar registered as a dealer with
an auto auction in St. Louis, Missouri, using his Illinois
driver’s license, his Alabama dealer’s license, and SSN
486.

On July 9, 2004, Special Agent Lillia Wensink of
Immigration and Customs Enforcement (ICE) contacted Special
Agent Thomas Brady of the SSA’s Office of Inspector General
to discuss Wensink’s suspicion that SSN 404 and SSN 486
were being used by a single person. Thereafter, Brady began
an investigation by accessing the SSA’s database for
information regarding the two SSNs, ordering certified
copies of the applications submitted to the SSA for
issuance of the two SSNs, obtaining bank and tax records
for both SSNs, and gathering other relevant information.
Brady learned that SSN 404 had been issued to an
“Abdolhossein Rastegar,” whose date of birth was March 21,
1957, and whose mother’s name was “Ehtram Azadi,” and that
SSN 486 had been issued to a “Hossein Cyrus Rastegar,”
whose date of birth was also March 21, 1957, and whose
mother’s name was “Ehteram Azad.” Brady also learned that
Rastegar had obtained a Missouri driver’s license under SSN
404 and had renewed this license even after applying for
and receiving SSN 486. Moreover, Brady discovered that over
the period Rastegar had been renewing his Missouri driver’s
license under SSN 404, he also had obtained Illinois and
Alabama driver’s licenses under SSN 486. The tax records
Brady obtained revealed that Rastegar had used SSN 486 to
file his 1999 and 2000 tax returns, and that he had signed
both returns “Cyrus H. Rastegar.” The Form W-2 submitted to
the IRS by the Illinois EPA to report wages paid to
Rastegar in 1999 listed SSN 486. Based on his
investigation, Brady concluded that “the two individuals
with the two different names and the two different Social
Security numbers were one and the same person.” Trial Tr.
at 10.

On April 26, 2005, Brady and other federal agents
interviewed Rastegar at the St. Louis auto auction. When
asked for identification, Rastegar provided a resident
alien card issued in the name “Hossein Cyrus Rastegar,” an
Illinois driver’s license issued in the name “Cyrus
Rastegar,” and a social security card for SSN 486 in the
name “Hossein Cyrus Rastegar.” During this interview,
Rastegar explained that he had applied for a new social
security number after becoming a permanent United States
resident because he thought his prior illegal status had
rendered his old number — SSN 404 — invalid.
Rastegar also told Brady that after he was assigned SSN
486, he stopped using SSN 404.

On May 2, 2005, Rastegar went to the SSA office in St.
Louis and spoke with a claims representative about
“linking” the two SSNs. Rastegar explained that his wages
had been reported under the two numbers and that he wanted
to link the numbers in the SSA system. The claims
representative completed the necessary paperwork.

On July 21, 2005, a grand jury returned an indictment
charging Rastegar with violating 42 U.S.C. §
408(a)(7)(A) by “knowingly and . . . with an intent to
deceive, and for the purpose of filing a federal income tax
return for the year 2000, [using] a Social Security account
number assigned to him by the Commissioner of the [SSA] . .
. based on false information furnished by the defendant.”
Appellant’s App. at 4. After a bench trial, the District
Court found Rastegar guilty and sentenced him to a one-year
term of probation and a $2,000 fine. Rastegar appeals,
arguing that the government presented insufficient evidence
to prove that he intended to deceive the IRS when he filed
his 2000 tax return or that he was assigned SSN 486 based
on false information he provided to the SSA.

We review a challenge to the sufficiency of the evidence de
novo, viewing the evidence in the light most favorable to
the verdict and drawing all reasonable inferences in favor
of the verdict. United States v. Spears, 454 F.3d 830, 832
(8th Cir. 2006). We will reverse only if no reasonable
trier of fact could find the defendant guilty beyond a
reasonable doubt. Id. Given this strict standard of review,
we will reverse a verdict based on insufficiency of the
evidence only in “‘rare cases.'” United States v. Lee, 356
F.3d 831, 836 (8th Cir. 2003), cert. denied, 541 U.S. 1092
(2004).

Rastegar first argues that the evidence was insufficient to
prove that his failure to disclose SSN 404 in his 1990 SSN
application caused the SSA to assign him SSN 486. At trial,
the government called Special Agent Brady to testify
regarding the customary operations of the SSA and the
effect Rastegar’s failure to disclose SSN 404 in his 1990
application had on the SSA’s decision to assign Rastegar
SSN 486. Describing his background and qualifications,
Brady stated that he had been employed by the SSA’s Office
of Inspector General for over ten years, that he was
charged with investigating allegations of fraud involving
SSA programs, that he was familiar with the workings of the
SSA, and that SSA policies and procedures were intended to
prevent individuals from fraudulently obtaining or using
multiple SSNs. In response to cross examination by
Rastegar’s attorney, Brady specifically testified, “Had
[Rastegar] provided the correct information [in his 1990
application], there wouldn’t have been a second Social
Security number issued.” Trial Tr. at 51.

Rastegar contends that Brady was not qualified to testify
regarding the workings of the SSA. Thus, according to
Rastegar, the government did not present sufficient
evidence to prove that the SSA assigned Rastegar SSN 486
based on the false information he submitted to the agency in
his 1990 application. Because Rastegar did not object to
Brady’s competence to testify regarding the SSA’s
practices, we review this claim for plain error. See United
States v. Olano, 507 U.S. 725, 731-32, 735 (1993) (holding
that only obvious errors affecting the defendant’s
substantial rights and the fairness, integrity, or public
reputation of judicial proceedings warrant reversal). Brady
was a long-term employee of the SSA’s Office of Inspector
General and he was familiar with the workings of the agency
as a result of that employment. Brady testified that his
job description included “investigat[ing] allegations of
fraud involving programs of the [SSA].” Trial Tr. at 9.
Given Brady’s background, his specialized experience, and
our deferential standard of review, we cannot say that the
District Court plainly erred in permitting Brady to testify
regarding the effect Rastegar’s inaccurate 1990 application
had on the SSA’s decision to assign Rastegar SSN 486.

Rastegar asserts that even if Brady was qualified to
testify regarding SSA matters, his testimony failed to
prove that the SSA would not have assigned him SSN 486 had
he accurately disclosed in his 1990 application that the
SSA had previously assigned him SSN 404. In other words,
Rastegar contends that the government failed to prove that
his statements were material to the SSA’s decision to
assign him SSN 486.

We addressed a similar materiality argument in United
States v. Henderson, 416 F.3d 686 (8th Cir. 2005), cert.
denied, 126 S. Ct. 1343 (2006), where the defendant was
charged with, inter alia, making false statements to the
SSA in order to secure continued disability payments in
violation of 42 U.S.C. § 408(a)(3) and (4). In
Henderson, the defendant represented to the SSA that she
suffered four or five migraine headaches a week, could not
travel, and could not concentrate. 416 F.3d at 690. The SSA
established, however, that the defendant told her cosmetic
surgeon that she suffered only one or two migraines a week,
that she toured the country vacationing and competing in
beauty pageants, and that she managed two businesses. Id.
The defendant in Henderson argued that the government
failed to prove that her false statements or omissions were
material to the SSA’s decision to award benefits. Id. at
692. We noted that to establish the “materiality” of the
defendant’s statements, the government need only show that
the statements had a “‘natural tendency to influence, or
[were] capable of influencing, the decision of the decision
making body to which [they were] addressed,'” a standard
the government easily met based on the evidence of the
defendant’s misrepresentations. Id. at 692 (quoting Kungys
v. United States, 485 U.S. 759, 769-70 (1988)); see United
States v. Trent, 949 F.2d 998, 999 (8th Cir. 1991)
(interpreting 18 U.S.C. § 1001’s general prohibition
against, inter alia, making false statements to a United
States agency and noting that “there need be no proof that
the agency actually relied on the false statement: `The
test of materiality involves only the capability of the
statement to influence the agency’s operation'” (citation
to quoted case omitted)), cert. denied, 505 U.S. 1209
(1992).

We see no reason to interpret “materiality” for purposes of
§ 408(a)(7)(A) any differently. Brady testified
— and Rastegar admitted — that Rastegar
stated in the 1990 application that he had not previously
been assigned an SSN. This evidence, coupled with Brady’s
testimony that the SSA maintained a policy against assigning
an individual multiple SSNs in an effort to prevent fraud,
was sufficient to show that Rastegar’s failure to disclose
SSN 404 had a “natural tendency to influence” the agency’s
decision to assign Rastegar SSN 486. Furthermore, Brady’s
testimony that the SSA would not have assigned SSN 486 to
Rastegar had the agency known that SSN 404 had already been
assigned to him established not only that Rastegar’s false
statement was capable of influencing the SSA’s decision,
but that the false statement in fact influenced the
agency’s decision to assign Rastegar SSN 486. We conclude
that the government presented sufficient evidence for a
reasonable trier of fact to find that the SSA assigned
Rastegar SSN 486 on the basis of false information Rastegar
provided to the agency.

Rastegar next asserts that the government presented
insufficient evidence to establish that he possessed the
requisite intent to deceive when he used SSN 486 to file
his 2000 tax return with the IRS. We disagree. Although we
have not considered the proof necessary to establish
“intent” for purposes of § 408(a)(7)(A), in
Henderson we interpreted “intent” for purposes of §
408(a)(4). We noted that because intent is often difficult
to prove directly, it may be proven by circumstantial
evidence alone. Id.; see United States v. Perez-Campos, 329
F.3d 1214 (10th Cir. 2003) (interpreting the intent element
of 42 U.S.C. § 408(a)(7)(B) and affirming conviction
where government proffered only circumstantial evidence of
intent); United States v. McCormick, 72 F.3d 1404, 1406-07
(9th Cir. 1995) (affirming defendant’s conviction for
fraudulent use of an SSN in violation of 42 U.S.C. §
408(g)(1) — later redesignated as 42 U.S.C. §
408(a)(7) — based on circumstantial evidence of
intent that included defendant’s failure to disclose in his
application for an SSN that he had previously been assigned
an SSN). Here, the government presented evidence that
Rastegar used different names to apply for SSNs in 1976 and
1990, used SSN 404 and SSN 486 concurrently, falsely
indicated on his 1990 SSN application that he had not
previously been assigned an SSN, obtained an Alabama
driver’s license and registered as an auto dealer under SSN
486 during the period he was renewing his Missouri driver’s
license under SSN 404, and continued to receive wages and
reporting documents from the Pattonville and Hazelwood
school districts under SSN 404 after he was assigned SSN
486. From this evidence, circumstantial though it may be, a
reasonable trier of fact could infer that Rastegar
possessed the requisite intent to deceive when he used SSN
486 to file his 2000 tax return.

Rastegar argues that because he provided some accurate
information on his 2000 tax return, such as his address,
and because use of SSN 486 on his 2000 tax return would
result in a loss of benefits under SSA programs, he could
not have possessed the necessary intent to deceive. We
disagree. The fact that Rastegar provided some accurate
information in his 2000 tax return does not excuse his use
of SSN 486, which was assigned to him on the basis of false
information he provided to the SSA. See Perez-Campos, 329
F.3d at 1216-17 (concluding that evidence was sufficient to
establish that the defendant intended to deceive government
agents even if the defendant provided the agents with some
accurate information). Likewise, the fact that Rastegar
arguably stood to lose SSA benefits by filing his 2000 tax
return using SSN 486 does not justify his use of a
fraudulently obtained SSN. See id. at 1217 (noting that
even if the actual effect of using a false SSN was to
facilitate law enforcement efforts, it does not follow that
this was the intended effect; the defendant’s scheme could
simply have backfired).

Having carefully reviewed the evidence in the light most
favorable to the verdict, we conclude that there was
sufficient evidence from which a reasonable trier of fact
could have found Rastegar guilty of violating 42 U.S.C.
§ 408(a)(7)(A). Accordingly, we affirm the judgment
of the District Court.

[fn1] The Honorable Henry E. Autrey, United States District
Judge for the Eastern District of Missouri.

[fn2] For privacy and security reasons, the last six numbers
of Rastegar’s two social security cards are not shown.