Opinion
No. 05-10328. D.C. No. CR-03-00236-VRW.
Argued and Submitted February 16, 2007 San Francisco, California.
March 16, 2007.
Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Nikolai Tehin ("Tehin") appeals his jury conviction and sentence for mail fraud, in violation of 18 U.S.C. §§ 2, 1341, and 1346, laundering of monetary instruments, in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(A)(i), and engaging in monetary transactions with criminally derived property, in violation of 18 U.S.C. § 2 and 1957. Tehin presents four main arguments on appeal: that the district court erred by (1) making factual findings based on a preponderance of the evidence that increased Tehin's sentencing offense level; (2) applying U.S. Sentencing Guideline ("USSG") provisions §§ 2B1.1(b)(7)(C) and 3C1.1 to increase Tehin's offense level by a total of four levels; (3) not grouping Tehin's mail fraud and money laundering convictions for sentencing purposes; and (4) denying Tehin's Federal Rule of Criminal Procedure Rule 29(a) ("Rule 29") motion. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.
Because the parties are familiar with the facts and the procedural history underlying this appeal, we mention them only insofar as necessary to explain our decision.
A. THE DISTRICT COURT'S FACTUAL FINDINGS AT SENTENCING
Tehin argues that the district court erred by disregarding the jury's finding that the number of victims involved was less than ten, and deciding for itself, by a preponderance of the evidence, that more than fifty victims were involved. Tehin also contends that his Sixth Amendment rights were violated when the district court determined by a preponderance of the evidence when the fraud was detected. Because Tehin did not raise these objections below, we review for plain error. See FED. R. CRIM. P. 52(b) ; United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005).
Under the plain error standard, relief is not warranted unless there has been: (1) error, (2) that was plain, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings. See United States v. Cotton, 535 U.S. 625, 631 (2002); United States v. Recio, 371 F.3d 1093, 1099 (9th Cir. 2004).
Before the district court sentenced Tehin, the district court certified several questions to the jury, asking it to determine beyond a reasonable doubt pertinent facts to answer these questions. Then, United States v. Booker, 543 U.S. 220 (2005), was decided. After Booker, the district court was empowered under the now discretionary guidelines to make factual findings relevant to sentencing enhancements on its own. See Ameline, 409 F.3d at 1077-78. Moreover, because the statutory maximum sentence for Tehin's money laundering or mail fraud convictions was twenty years, ( see 18 U.S.C. §§ 1341, 1346, and 1956(a)(1)(A)(i)), the district court's factual findings of more than fifty victims, and the date of the fraud detection, did not violate Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
B. APPLICATION OF SENTENCING GUIDELINES § 3C1.1 AND § 2B1.1(b)(7)(C)
1. THE USSG § 3C1.1 OBSTRUCTION OF JUSTICE SENTENCING ENHANCEMENT
The district court applied the obstruction of justice sentencing enhancement, USSG § 3C1.1, because Tehin submitted false backdated check requests to the California State Bar during its investigation of him for his misconduct in the Ferry case. Tehin contends this was error because his obstructive conduct occurred prior to his federal criminal investigation and prosecution. We review "the district court's interpretation of the Sentencing Guidelines de novo." United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).
Section 3C1.1 warrants a two level increase when "(A) the defendant willfully obstructed or impeded . . . the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense." Id. Both parties agree that the 2002 Guidelines govern this case.
We have stated several times that the obstructive conduct triggering § 3C1.1 does not have to be before federal law enforcement or prosecuting officials. See United States v. Luca, 183 F.3d 1018, 1022 (9th Cir. 1999) (affirming the imposition of a § 3C1.1 enhancement where the defendant "had intentionally submitted false prospectuses in response to an investigative subpoena issued by the Arizona Securities Division of the Arizona Corporations Commission"); United States v. Pizzichiello, 272 F.3d 1232, 1237 (9th Cir. 2001) (upholding § 3C1.1 enhancement where the defendant gave false information to state law enforcement officers who were investigating the offense he was federally convicted for). We stressed that "the focus is on the effect of the obstructive conduct." Luca, 183 F.3d at 1023. Here, Tehin's conduct, although before a state agency, was intended to cover up the same offense for which he was eventually convicted in federal court. See Pizzichiello, 272 F.3d at 1237. The district court properly applied the § 3C1.1 enhancement.
2. THE USSG § 2B1.1(B)(7)(C) SENTENCE ENHANCEMENT FOR VIOLATION OF A JUDICIAL ORDER
The district court also applied a sentencing enhancement for violating a judicial order under U.S.S.G. § 2B1.1(b)(7)(C) because Tehin disregarded the California Superior Court's order instructing Tehin to hold $154,813.14 in a special needs trust for the McCoys' son. We review this de novo. Kimbrew, 406 F.3d at 1151.
Section 2B1.1(b)(7)(C) authorizes a two offense level increase for "a violation of any prior, specific judicial or administrative order . . . not addressed elsewhere in the guidelines." USSG § 2B1.1(b)(7)(C) (2002). We apply "the rules of statutory construction" when interpreting the Guidelines. United States v. Bad Marriage, 392 F.3d 1103, 1116 (9th Cir. 2004). The plain meaning of unambiguous language in a guideline provision controls. Id.
Application Note 5(C) to § 2B1.1 states that (b)(7)(C) applies to a "judicial or administrative warning," and that "[a] defendant who does not comply with such a prior, official judicial or administrative warning demonstrates aggravated criminal intent and deserves additional punishment." Id.
Section 2B1.1(b)(7)(C)'s plain language applies to "any prior, specific judicial . . . order." Id. From the face of the guideline provision, the district court properly applied § 2B1.1(b)(7)(C) to Tehin's conduct. Moreover, we previously stated that a "formal order, injunction or decree" instructing a person to do or not to do something, as did the order in Tehin's case, and not informal decrees or warnings, is that to which § 2B1.1(b)(7)(C) applies. See United States v. Linville, 10 F.3d 630, 633 (9th Cir. 1993).
C. THE GROUPING OF TEHIN'S OFFENSES FOR SENTENCING
Tehin argues that the district court erred by not grouping the money laundering and mail fraud counts for sentencing purposes. Because Tehin did not raise this argument below, we review this for plain error. See FED. R. CRIM. P. 52(b); Ameline, 409 F.3d at 1078.
To determine Tehin's offense level the district court should have used either § 2S1.1 or § 2B1.1, but not both. See USSG § 2S1.1 app. n. 6 (2002). The district court chose the money laundering sentencing guideline, § 2S1.1. Section 2S1.1(a)(1) instructs a district court to use "the offense level for the underlying offense from which the laundered funds were derived" to calculate the "Base Offense Level." Id. The underlying offense in this case was mail fraud. Under § 2B1.1, the base offense level for Tehin's mail fraud counts was six. See § 2B1.1(a). However, § 1B1.5(b)(1) states that "an instruction to use the offense level from another offense guideline refers to the offense level from the entire guideline (i.e., the base offense level, specific offense characteristics, cross references, and special instructions)." Id. Using the specific offense characteristics of § 2B1.1, Tehin's base offense level would then be twenty-eight. See §§ 2B1.1(b)(1)(I), (b)(7)(c), (b)(2)(B). Thus, the district court properly used twenty-eight as Tehin's base offense level for § 2S1.1(a), and the increase of two under § 2S1.1(b)(2)(B) was correct. The district court did group Tehin's convictions for sentencing purposes. D. TEHIN'S RULE 29 MOTION
If the district court did not group the money laundering and mail fraud convictions together, as instructed by § 2S1.1 application note 6, Tehin's offense level would have been fifty-eight (twenty-eight from § 2B1.1 for the mail fraud convictions plus thirty from § 2S1.1 for the money laundering convictions) as opposed to thirty. See United States v. Calozza, 125 F.3d 687, 693 (9th Cir. 1997).
Tehin contends that the district court's denial of his Rule 29 motion was error because Tehin was "legally required" to send the mailings that were the subject of his convictions. We review de novo a trial court's ruling on a motion for acquittal. See United States v. Johnson, 357 F.3d 980, 983 (9th Cir. 2004). We review the evidence "in a light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Somsamouth, 352 F.3d 1271, 1274-75 (9th Cir. 2003) cert. denied, 541 U.S. 1000 (2004).
The Supreme Court has stated that the key issue is whether the mailings, legally required or not, were in furtherance of a defendant's scheme to defraud. See Schmuck v. United States, 489 U.S. 705, 715 (1989) ("The relevant question at all times is whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time."); see also id. at 713 n. 7 (stating that "the mailings in the present case, though in compliance with Wisconsin's car-registration procedure, were derivative of Schmuck's scheme to sell `doctored' cars and would not have occurred but for that scheme").
We have held that "a conviction for mail fraud may be upheld where `legally compelled' mailings were part of the scheme." United States v. Licciardi, 30 F.3d 1127, 1133 (9th Cir. 1994) (upholding a conviction for mail fraud where the subject mailing was a legally compelled letter). Even as part of the scheme "the use of the mails need not be an essential element of the scheme," rather "it is sufficient for the mailing to be incident to an essential part of the scheme or a step in the plot." Schmuck, 489 U.S. at 710-11 (internal citations and quotation marks omitted).
Viewing the evidence in a light most favorable to the government, a rational trier of fact could have found Tehin guilty of both the mail fraud and the money laundering charges. The evidence presented at trial overwhelmingly showed that Tehin was using proceeds from clients' settlements, without telling them, to pay his personal expenses, business expenses, and other clients, that he failed to advise clients that he had received their settlement awards, and that the statement of costs Tehin sent to Ferry was itself an attempt to defraud his client. The jury heard evidence from which it could have found Tehin guilty of mail fraud. And the Tehin + Partners' client trust accounts spreadsheets showed dates of client settlement award deposits, subsequent drafts upon the accounts for personal expenses or to pay other clients, and relevant balance amounts. Again, a jury, based on this evidence, could have found that Tehin paid clients money from other clients' settlement awards in an attempt to conceal his pilfering of the client trust accounts to pay for his personal expenses. The district court properly denied Tehin's Rule 29 motion.
AFFIRMED.
I concur in the result.