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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-4436
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RATTAN LAL AGGARWAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(March 17, 1994)
Before JONES and DeMOSS, Circuit Judges, and COBB*, District Judge.
DeMOSS, Circuit Judge:
A jury convicted defendant/appellant Rattan Lal Aggarwal of
one count of conspiracy and four counts of wire fraud in connection
with his participation in a fraudulent loan scheme. Aggarwal
appeals on several grounds. Finding no basis for reversal, we
AFFIRM Aggarwal's conviction and sentence.
Aggarwal raises seven points of error, claiming that: (1)
there was insufficient evidence to convict him; (2) the trial court
erred in denying Aggarwal's motion to depose an unavailable
*District Judge of the Eastern District of Texas, sitting by
designation.

witness; (3) the trial court erred in refusing to dismiss the
indictment due to late disclosure of Brady material; (4) the
government's expert witnesses violated Federal Rule of Evidence 704
by giving legal definitions and implied opinions on the defendant's
state of mind; (5) the trial court erred by refusing to dismiss the
indictment for vindictive prosecution; (6) the trial court erred by
refusing to give Aggarwal's proposed jury instructions on
knowledge, willfulness and intent; and (7) the trial court erred
during sentencing by refusing to consider Aggarwal's request for
downward departure.
I. DISCUSSION
A: Sufficiency of the Evidence
Aggarwal claims there was insufficient evidence to support his
conviction because the government did not prove that he had the
required specific intent to commit a fraud.
Aggarwal was convicted of wire fraud under 18 U.S.C. § 13432
and of conspiracy under 18 U.S.C. § 371.3 The government thus had
the burden of proving (1) a scheme to defraud that involved use of
the wires; and (2) that Aggarwal had the specific intent to commit
fraud in furtherance of the scheme. United States v. Rochester, 898
2This provision punishes one who "transmits [money or
messages] by means of wire" to further "any scheme or artifice to
defraud, or for obtaining money or property by means of false or
fraudulent pretenses." 18 U.S.C. 1343.
3This provision provides penalties when "two or more persons
conspire ... to commit any offense against the United States ...
and one or more of such persons do any act to effect the object
of the conspiracy." 18 U.S.C. § 371.
2

F.2d 971, 976 (5th Cir. 1990); United States v. Fagan, 821 F.2d
1002, 1008 (5th Cir. 1987), cert. denied, 484 U.S. 1005 (1988).
In assessing a challenge to the sufficiency of the evidence,
we must consider the evidence in the light most favorable to the
verdict and must afford the government the benefit of all
reasonable inferences and credibility choices. United States v.
Stouffer, 986 F.2d 916, 921-22 (5th Cir.), cert. denied, 114 S.Ct.
115 (1993). The evidence is sufficient if a rational trier of fact
could have found the essential elements of the offense beyond a
reasonable doubt based upon the evidence presented at trial.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Kim, 884 F.2d 189, 192 (5th Cir. 1989). The intent necessary to
support a conviction can be demonstrated by direct or
circumstantial evidence that allows an inference of an unlawful
intent, and not every hypothesis of innocence need be excluded.
United States v. McAfee, 8 F.3d 1010, 1014 (5th Cir. 1993); United
States v. Aubrey, 878 F.2d 825, 827 (5th Cir.), cert. denied, 493
U.S. 922 (1989); United States v. Henry, 849 F.2d 1534, 1536 (5th
Cir. 1988).
According to the indictment, Aggarwal was involved in a scheme
in which the conspirators collected "advance fees" of $10,000 to
$120,000 from potential borrowers by fraudulently promising to
arrange pre-approved multi-million-dollar loans from foreign
lending institutions. The conspirators were Aggarwal, who was self-
employed as a broker of financial loan packages under the name of
RACORP, Inc.; Edwin E. Whitis, II and Deanna J. Whitis, who were
3

officers and directors of Commerce National Exchange Corporation
("CNEC"); and John Brumfield, a CNEC employee. Edwin Whitis pleaded
guilty to a lesser charge and testified at trial for the
government. Whitis admitted to having sought to defraud the
potential borrowers, and testified that Aggarwal was part of the
scheme. Other government witnesses, including Deanna Whitis and
other former CNEC employees, testified that Aggarwal was the "big
boss" who gave Edwin Whitis instructions, and that Whitis could not
have come up with such a scheme on his own. CNEC placed
advertisements in the Wall Street Journal claiming it could pre-
approve 100 percent funding of loans with lending commitments
direct from banks via fax or letter. Aggarwal provided a reference
letter for CNEC, allowing it to meet the strict requirements of the
Wall Street Journal advertisement acceptance policy. Victims were
told falsely that the conspirators had been successful in obtaining
funding for numerous clients. In reality, no potential borrower
ever received a loan. Victims who asked for a reference were
directed to call a pre-arranged number, where they talked to a
"former client" who was in reality Deanna Whitis using a false
name.
Aggarwal was in charge of arranging the loan commitments from
European banks through the ExportFinazierungsBank ("Export Bank")
in Vienna, Austria.4 Aggarwal also gave Edwin Whitis instructions
on drafting the contracts to be signed by the victims. The
4At some point the Export Bank's license was revoked, but as
we explain in Parts B and C, the license issue was not crucial to
the government's case.
4

contracts obligated the borrower to acquire an irrevocable letter
of credit or prime bank guarantee to serve as collateral. The
conspirators did not help the victims obtain the guarantees; they
wanted the victims to default in this obligation, because then the
victims would lose the advance fee. The government, in its
arguments to the jury, characterized the scheme as a "chicken-and-
egg" situation. Edwin Whitis testified that Aggarwal told him that
the guarantee companies "couldn't deliver the collateral in the
first place." According to trial testimony, funding was highly
unlikely because the required collateral/guarantee was virtually
impossible to obtain for the required terms. Several government
witnesses testified that if a borrower had the credit to obtain
that kind of collateral, he or she would have no reason to purchase
one of CNEC's "loan commitments." The government's expert witness
on international banking, Robert Rendell, put it this way:
"[T]his security provision was something impossible for
[the victim] to meet, because she could not obtain the
letter of credit without the funds, and she could not get
the funds without the letter of credit, so she was sort
of stuck in limbo. And therefore, this [loan] commitment
was of no use to her because she could never draw down
the funds."
Whitis said he and Aggarwal had an agreement to split the advance
fees, which amounted to more than $3 million. Aggarwal admitted
having received at least $1.5 million in transfers from CNEC.
Whitis and Aggarwal spoke daily and Aggarwal gave instructions on
how to handle disgruntled victims. The business plans taken from
the victims by CNEC were placed in a file cabinet and never sent to
Aggarwal, and thus never sent to any source of funding. Whitis
5

testified that the only purpose for taking the business plans was
to lend the scheme an air of legitimacy. The government's expert
Rendell stated that no legitimate institution would lend or commit
the millions of dollars contemplated in this scheme without a
detailed business plan setting out how the money would be used.
Another government expert, John Shockey, called the scheme "a
typical advance fee scam."
Aggarwal testified in his own defense and claimed that he was
unaware of the scheme to defraud committed by Whitis, and that he
earned whatever fees he received because he was ready and willing
to provide the loan commitment if the borrower would obtain the
required collateral.
The government argued that Aggarwal's intent to defraud the
potential borrowers can be inferred from the evidence, including
the facts that Aggarwal received $1.5 million in transfers from
CNEC, that he was in contact with Whitis daily, and that, of the
dozens of "clients," not one ever received the promised loan.
Considering the evidence in light most favorable to the
verdict, we hold that a rational jury could have found the required
elements of wire fraud and conspiracy, including the most contested
element, namely Aggarwal's intent to join the conspiracy and
defraud the potential borrowers. Therefore, we hold that the
evidence is sufficient to support Aggarwal's conviction.
B: Denial of Rule 15(a) Motion to Take Deposition
Aggarwal claims the trial court erred by denying his motion
under Federal Rule of Criminal Procedure 15(a) to depose an
6

unavailable witness. The rule allows such depositions when "due to
exceptional circumstances of the case it is in the interest of
justice that the testimony of a prospective witness of a party be
taken and preserved for use at trial." Fed. R. Crim. P. 15. The
district court decides when "exceptional circumstances" exist,
subject to appellate review for abuse of discretion. United States
v. Allie, 978 F.2d 1401, 1405 (5th Cir. 1992), cert. denied, 113
S.Ct. 1662 (1993).
In this case, the trial court denied Aggarwal's motion to
depose Charles Zani, a consultant of the Export Bank, regarding the
status of the Export Bank's license.5 The court refused to allow
the deposition on the basis that Aggarwal's motion was untimely,
that the testimony would be hearsay, and that the issue was "not
essential to the defense of this case." Aggarwal argues that
exceptional circumstances existed because Zani, a citizen of
France, would not voluntarily enter the United States because he
feared arrest. He also contends that the Export Bank's ability or
inability to do business was "crucial to the government's case."
The district court did not abuse its discretion in finding
that there were no exceptional circumstances. The government's
central theory of the case at trial did not rest on the Export
Bank's inability to do business. Rather, the government's main
argument was the "chicken-and-egg" analogy -- that the victims were
5The trial court also denied Aggarwal's later request to
depose "Dr. Gruber," an Austrian administrative judge identified
in a German-language letter dealing with the Export Bank's
license. This letter is discussed in connection with Aggarwal's
Brady claim.
7

put into a no-win situation where they could not obtain the
required collateral and were forced to default. In addition,
Aggarwal's expert was allowed to explain that the Export Bank was
not the lending bank, but merely an agent bank, a function it could
serve regardless of the formal status of its license in Austria.
Alternatively, we affirm the trial court's denial of
Aggarwal's motion on the basis of unexcused delay. Even though the
15(a) motion was filed about a month before the case finally went
to trial on its third setting, it was untimely in that it was about
a month after the court's deadline for pretrial motions. Aggarwal
contended that it took until November 19, 1992, to "identify and
locate" Zani, but the evidence shows that Aggarwal knew of Zani and
how to contact him as early as 1986.
Denial of a Rule 15(a) motion for untimeliness is not an abuse
of discretion. United States v. Dearden, 546 F.2d 622, 625 (5th
Cir.), cert. denied, 434 U.S. 902 (1977); United States v. Whiting,
308 F.2d 537, 541 (2d Cir. 1962), cert. denied, 372 U.S. 919
(1963); United States v. Broker, 246 F.2d 328, 329 (2d Cir. 1957),
cert. denied, 355 U.S. 387 (1957); See also 2 CHARLES A. WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 242 & nn. 4-5 (1982 &
Supp. 1993)("The rule is silent on when a motion for a deposition
is to be made. It should be made promptly, and a motion for a
8

deposition that will delay the trial may be rejected as
untimely.").6 In addition, we will not disturb the trial court's
determination that this was not an exceptional circumstance.
C: Late Disclosure of Brady Material
Aggarwal claims that the trial court erred by refusing to
impose sanctions on the government for violation of his rights
under Brady v. Maryland, 373 U.S. 83, 87 (1968). Brady and its
progeny hold that the government violates due process when it
suppresses material evidence favorable to the defense. Evidence is
"material" only if there is a reasonable probability that the
verdict would have been different had the evidence been disclosed
to the defendant, or if, in light of the nondisclosure, the
reviewing court's confidence in the guilty verdict is undermined.
Jones v. Butler, 864 F.2d 348, 354 (5th Cir. 1988), cert. denied,
490 U.S. 1075 (1989).
About two weeks before Aggarwal's trial, the government
obtained several documents, written in German, which stated that
the Export Bank retained some ability to do business even after its
license was revoked. According to an informal translation obtained
by defense lawyers, a letter from a "Dr. Gruber," an Austrian
6Aggarwal cites United States v. Farfan Carreon, 935 F.2d
678, 680 (5th Cir. 1991), claiming that it supports his position
that his motion was not untimely. But Farfan Carreon can be
distinguished. In that case, even though the motion was filed on
the morning of trial, neither side objected on the basis of
timeliness, and timeliness was not at issue on appeal. Instead,
the trial court's denial of the Rule 15(a) motion was reversed
when the appellate court found "exceptional circumstances."
9

judge, explained that in Austria, an administrative appeal of the
bank's license revocation restores the status quo, as if the
license had never been revoked. The government did not give these
documents to the defense until the morning trial began.
Aggarwal contends that the Export Bank's license status was a
material issue, and that therefore the late disclosure of these
documents was a Brady violation obligating the trial court to
dismiss the indictment, order a mistrial, or alternatively allow
continuance to depose "Dr. Gruber" under Rule 15(a). He is
mistaken. Even though the indictment alleged that the loan
commitments were worthless because the Export Bank's license had
been revoked, the government avoided the license issue at trial and
instead focused on its "chicken-and-egg" argument. The fact of the
revocation came up several times during testimony, but, as stated
above, Aggarwal's expert was given a chance to explain that the
bank could still serve as an agent bank. In the trial, the Export
Bank's license was a peripheral issue not material to the defense.
We hold that no Brady violation occurred.

D: Opinions on Ultimate Issues
Aggarwal claims that the government's expert witnesses, by
using terms like "scam," "fraudulent," and "fraud," violated
Federal Rule of Evidence 704(b).7 Aggarwal says the government's
7Rule 704 states: "(a) Except as provided in subdivision
(b), testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental
state or condition of a defendant in a criminal case may state an
opinion or inference as to whether the defendant did or did not
10

experts used the words too often in characterizing the loans in
this case, thus implying that Aggarwal had the required intent to
commit fraud. The government, however, points out that (1) its
witnesses used these words mostly to describe the area of their
expertise (Shockey worked for the "fraud unit" of the Office of the
Comptroller of the Currency); (2) the defense expert used the
"offending words" even more than the government experts; and (3)
the government experts never commented directly on Aggarwal's state
of mind; and (4) Rule 704(a) allows expert testimony that "embraces
an ultimate issue to be decided by the trier of fact," so an expert
opinion that the loan scheme was "fraudulent" is not improper. In
addition, because the defense did not object to these words during
trial, we will reverse only for plain error, United States v.
Vaquero, 997 F.2d 78, 83 (5th Cir.), cert. denied sub. nom., Taylor
v. United States, 114 S.Ct. 614 (1993)., and no such error is
apparent here.
E: Vindictive Prosecution
The conviction now on appeal was based on the second
indictment of Aggarwal in this case. Aggarwal was initially
indicted on November 16, 1988 for wire fraud, conspiracy and other
crimes in connection with the same loan scheme that was made the
basis of this appeal. He agreed to cooperate with the government
and entered into an agreement to waive indictment and plead guilty
to a one-count information alleging misprision of felony, with the
have the mental state or condition constituting an element of the
crime charged or of a defense thereto. Such ultimate issues are
for the trier of fact alone."
11

indictment being dismissed at sentencing. Aggarwal was sentenced to
12 months and appealed his sentence to the Fifth Circuit. The Fifth
Circuit, 909 F.2d 1480 (5th Cir. July 18, 1990, TABLE), vacated the
guilty plea and sentence because Aggarwal had not been adequately
informed that he was subject to a term of supervised release, and
because the base offense level was incorrectly calculated. On
remand, Aggarwal refused to again waive indictment and plead to the
information. The government re-indicted Aggarwal on May 21, 1992.
Aggarwal argues that the 1992 indictment carried "far more
severe penalties," than the one-count information alleging
misprision of felony, and therefore improperly penalized him for
exercising his right to appeal. However, this argument misses the
point. The 1992 indictment should be compared with the 1988
indictment, not with the misprision charge in the information to
which Aggarwal agreed to plead guilty. The government points out
correctly that when Aggarwal after his appeal refused to waive
indictment and plea to the information, "the deal was off and the
parties were back to square one." Under the original indictment in
1988, Aggarwal was subject to possible statutory punishment of 250
years of imprisonment. In contrast, the re-indictment in 1992
subjected him to a possible 45 years of imprisonment. The
misprision charge in the information carried a maximum penalty of
3 years. The proper comparison is between the two indictments, and
there was no vindictiveness, because Aggarwal's exposure to
punishment decreased, rather than increased, in the second
indictment. Byrd v. McKaskle, 733 F.2d 1133, 1136 (5th Cir.
12

1984)(stating that "threshold question" in examining a claim of
vindictiveness is whether the defendant was subjected to a more
severe charge).
Even if Aggarwal had been subjected to a harsher penalty after
his appeal, the inquiry would not end there. United States v.
Guthrie, 789 F.2d 356, 361 (5th Cir. 1986) ("That more severe
charges have been employed is not dispositive, for the Due Process
Clause is not offended by all possibilities of increased punishment
upon retrial after appeal, but only by those that pose a realistic
likelihood of vindictiveness."). The appellate court "must examine
the prosecutor's actions in the context of the entire proceedings,"
and if there is any indication that the prosecutor had a legitimate
reason (other than vindictiveness) for increasing the charges, then
no presumption of vindictiveness is created. United States v.
Krezdorn, 718 F.2d 1360, 1365 (5th Cir. 1983)(en banc), cert.
denied, 465 U.S. 1066 (1984). The prosecutor's decision to re-
indict Aggarwal on considerably lesser charges than those brought
in the original indictment was motivated by the desire to see that
justice was done, not to punish appellant for taking an appeal. The
district court, in its order denying Aggarwal's motion for release
pending appeal, stated this view:
"The fact that plaintiff decided to appeal his initial sentence
after his plea of guilty to an information charging misprision
of felony, and now faces possible incarceration on a longer
duration, is evidence of a calculated gamble on the part of the
defendant, and not malicious prosecution by the government.
Plaintiff's malicious prosecution claim is without merit and
does not raise a substantial question of law or fact."
The trial court's argument is convincing. The Supreme Court has
13

held that changes in the charging decision are often an integral
part of plea negotiations and are an inaccurate measure of improper
prosecutorial "vindictiveness." United States v. Goodwin, 457 U.S.
368, 380 (1982). There was no "vindictiveness" in this case.
F: Refusal of Proposed Jury Instructions
Aggarwal claims the trial court erred in refusing to give his
proposed jury instructions, which read as follows:
"Members of the Jury: In evaluating whether the defendant acted
`knowingly,' `willfully,' or `intentionally' with regard to the
fraudulent scheme alleged in the indictment and to which Edwin
Whitis has testified, you may consider whether defendant needed
to have knowledge of any of Mr. Whitis' actions or statements
to have met his responsibilities of securing commitments from
different banks in Europe. Thus, if you find that all that
defendant needed to do in order to earn his fee was simply
secure a commitment from a European bank, and that such fee was
thereupon rightfully earned regardless of any false
representations that Whitis would have made to the borrowers,
then you may consider such finding in furtherance of
determining whether defendant lacked any motive to have
knowingly aided Whitis to commit the alleged fraud.
Similarly, if you find that despite the revocation of its
license, the Export Finance Bank was fully authorized to act as
a fiduciary and thereby secure loan commitments for American
borrowers from other European banks, which loan commitments had
the effect of authorizing defendant to collect a fee, then you
may consider that factor as well in determining whether
defendant needed to have any knowledge of Mr. Whitis' admitted
false representations to borrowers and hence whether, here
again, defendant lacked any motive to have been a part of Mr.
Whitis' fraudulent scheme."
A district court's refusal of a defendant's proposed jury
instructions is reviewed for abuse of discretion; the trial judge
has substantial latitude in formulating the jury charge. United
States v. Sellers, 926 F.2d 410, 413 (5th Cir. 1991); United States
v. Rochester, 898 F.2d 971, 978 (5th Cir. 1990). We may reverse
only if the requested instruction (1) is substantially correct; (2)
was not substantially covered in the charge actually delivered to
14

the jury; and (3) concerns an important point such that failure to
give it seriously impaired the defendant's ability to effectively
present a given defense. Rochester, 898 F.2d at 978; United States
v. Mollier, 853 F.2d 1169, 1174 (5th Cir. 1988).
Here, the court instructed the jury basically that to find
defendant guilty of aiding and abetting a fraud, the jury must find
that he had the intent to defraud. Aggarwal argues that the given
charge did not adequately present his defense to the jury, because
the jury did not fully understand that he did not need to know
about Whitis' actual criminal activities in order to legitimately
benefit from them in good faith. We disagree. The government points
out, and Aggarwal concedes, that the given jury charge was taken
substantially from the Fifth Circuit Pattern Jury Instructions and
gave correct legal definitions of "knowingly" and "willfully."
Aggarwal, through his own testimony and arguments of counsel, was
able to adequately present his defense. We hold that there was no
abuse of discretion in refusing the requested instructions.
G: Refusal to Consider Downward Departure
At sentencing Aggarwal asked the trial court to depart
downwards to bring his sentence more in line with the sentence he
received for pleading guilty to misprision of felony. The trial
court said nothing, and did not depart downwards. Aggarwal argues
on appeal that perhaps the court mistakenly believed that it did
not have the power to depart. The record does not support this
contention. At the beginning of the sentencing hearing the court
commented that it realized counsel was making legal arguments to
15

support a downward departure. The court went on to hear these
arguments, plus those of the government for an upward departure,
before imposing a term of imprisonment within the guideline range.
We will not review a district court's refusal to depart from the
Sentencing Guidelines unless the refusal was in violation of the
law. United States v. McKnight, 953 F.2d 898, 906 (5th Cir.), cert.
denied, 112 S.Ct. 2975 (1992).
II. CONCLUSION
For the reasons we have stated, we find no basis for reversal;
therefore we AFFIRM Aggarwal's conviction and sentence.
wjl:\opn\93-4436.opn
ace
16