Opinion
No. 05-50866.
Submitted April 10, 2007 Pasadena, California.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a)(2).
May 17, 2007.
Appeal from the United States District Court for the Central District of California Alicemarie H. Stotler, District Judge, Presiding, D.C. No. CR-01-00135-AHS-01.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Stephen Reeder appeals his conviction and sentence for bank fraud. See 18 U.S.C. § 1344. We affirm.
(1) Reeder asserts that the district court plainly erred when it allowed appraisals obtained by the defrauded banks to be admitted in evidence. We disagree. Reeder waived his business record foundation claims when he expressly and voluntarily stipulated to the records' foundation. See United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc); United States v. Ferreira-Alameda, 804 F.2d 543, 545 (9th Cir. 1986); United States v. Houston, 547 F.2d 104, 107 (9th Cir. 1976) (per curiam). The evidence was more probative than unfairly prejudicial.See Fed.R.Evid. 403. Moreover, Reeder's rights under the Confrontation Clause of the Sixth Amendment were not violated. See Crawford v. Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 1367, 158 L. Ed. 2d 177 (2004); United States v. Cervantes-Flores, 421 F.3d 825, 833-34 (9th Cir. 2005) (per curiam), cert. denied, __ U.S. __ , 126 S. Ct. 1911, 164 L. Ed. 2d 668 (2006).
(2) The district court did not plainly err when it allowed a real estate broker to explain why she had advised her seller client about the sale price. See Fed.R.Evid. 701; United States v. Simas, 937 F.2d 459, 464-65 (9th Cir. 1991).
(3) Nor did the district court err when it permitted the government to cross-examine appraiser Stephen Barr about investigations into his prior appraisal activity; the government had information to justify that questioning. See United States v. Gay, 967 F.2d 322, 328 (9th Cir. 1992); United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir. 1981); Zaragoza-Almeida v. United States, 427 F.2d 1148, 1149-50 (9th Cir. 1970).
(4) Even if some of the evidence about appraiser Charles Vilotti was inadmissible hearsay, it was not objected to and its admission did not affect Reeder's substantial rights. Moreover, no plain error reversal is required by the fact that the government asked Barr twice if he knew that Vilotti had been disciplined. An objection was sustained both times, the district court was not required to grant a mistrial, and there was no request for one.
See United States v. Steele, 298 F.3d 906, 912 (9th Cir. 2002).
See United States v. Maciel-Vasquez, 458 F.3d 994, 996 n. 3 (9th Cir. 2006); Simas, 937 F.2d at 464; United States v. Henderson, 404 F.2d 832, 834 (9th Cir. 1968).
(5) The cross-examination of Reeder's witnesses, Murray Mead and Betty Curl, was reasonably related to topics that they had testified to on direct examination. See United States v. Vasquez, 858 F.2d 1387, 1392 (9th Cir. 1988). Moreover, it was otherwise properly admitted. See Fed.R.Evid. 403, 404(a); United States v. Jenkins, 785 F.2d 1387, 1395-96 (9th Cir. 1986). There was no error.
(6) The district court did not err when it permitted the government to impeach Curl with her prior statement, which both cast doubt upon her truthfulness and exposed her bias. See United States v. Adamson, 291 F.3d 606, 612 (9th Cir. 2002); United States v. Scott, 74 F.3d 175, 177 (9th Cir. 1996); United States v. Higa, 55 F.3d 448, 451-52 (9th Cir. 1995). Nor was Curl's testimony unduly prejudicial. See Fed.R.Evid. 403.
(7) The district court did not abuse its discretion when it allowed the admission of financial statements used by Reeder's co-conspirators in obtaining fraudulent loans. The notion that the admission of those statements was too confusing is simply otiose.
(8) Moreover, evidence of Reeder's use of a false name when dealing with a lender was proper to help cast light upon Reeder's intent, plans and knowledge. See Fed.R.Evid. 404(b); United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981) (per curiam); United States v. Pitman, 475 F.2d 1335, 1338 (9th Cir. 1973); see also United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012-13 (9th Cir. 1995). Also, the evidence was not unduly prejudicial. See United States v. Guerrero, 756 F.2d 1342, 1347 (9th Cir. 1984) (per curiam).
(9) The district court did not err when it permitted attorney Gregory Grantham to testify despite Reeder's assertion of the attorney-client privilege. The district court properly determined that the privilege was not available because Grantham was not acting as Reeder's attorney in the transactions testified to, and if he had been acting as Reeder's attorney, the crime-fraud exception applied.
See United States v. Munoz, 233 F.3d 1117, 1128 (9th Cir. 2000);see also Ralls v. United States, 52 F.3d 223, 226 (9th Cir. 1995).
See UMG Recording, Inc. v. Bertelsmann AG (In re Napster Inc. Copyright Litig.), No. 06-15886, slip op. 3065, 3091-92 (9th Cir. Mar. 14, 2007); United States v. Chen, 99 F.3d 1495, 1503-04 (9th Cir. 1996);In re Grand Jury Proceedings, 87 F.3d 377, 381-82 (9th Cir. 1996).
(10) No plain error resulted from the government's closing argument, which, at the very least, drew fair inferences from the evidence. See United States v. Rude, 88 F.3d 1538, 1548-49 (9th Cir. 1996).
(11) In the context of this case, the instructions actually given were sufficient. See United States v. Frega, 179 F.3d 793, 806 n. 16 (9th Cir. 1999); United States v. Dees, 34 F.3d 838, 842-43 (9th Cir. 1994);United States v. Heck, 499 F.2d 778, 790 (9th Cir. 1974); cf. United States v. Chambers, 918 F.2d 1455, 1460 (9th Cir. 1990) (holding that in context it was not necessary to define "knowingly").
(12) Despite Reeder's claims to the contrary, it is apparent from the record that the district court properly considered the sentencing factors, including the Sentencing Guidelines. See 18 U.S.C. § 3553;United States v. Mohamed, 459 F.3d 979, 985 (9th Cir. 2006); United States v. Ellsworth, 456 F.3d 1146, 1153 n. 3 (9th Cir.), cert. denied, __ U.S. __, 127 S. Ct. 753, 166 L. Ed. 2d 583 (2006); United States v. Mix, 457 F.3d 906, 912 (9th Cir. 2006). Neither were its findings of fact clearly erroneous. See United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). Nor was Reeder's sentence unreasonable because it was different from those of his confederates. His situation — his conduct and history — were also different. See United States v. Plouffe, 445 F.3d 1126, 1131-32 (9th Cir.), cert. denied, __ U.S. __, 126 S. Ct. 2314, 164 L. Ed. 2d 832 (2006); see also United States v. Marcial-Santiago, 447 F.3d 715, 717 (9th Cir.), cert. denied, __ U.S. __ , 127 S. Ct. 309, 166 L. Ed. 2d 232 (2006). Because the Guideline range was only 10 months, the district court was not required by 18 U.S.C. § 3553(c)(1) to state separate particular reasons for a sentence within that range. Reeder's misguided claim to the contrary is frivolous.
In so stating, we assume, without deciding, that the 18 U.S.C. § 3553(c)(1) determination is still applicable after United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
AFFIRMED.