United States v. Aida Castro ( 2014 )

FILED
NOT FOR PUBLICATION APR 01 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50486
Plaintiff - Appellee, D.C. No. 3:10-cr-02242-JM-5
v.
MEMORANDUM*
AIDA AGUSTI CASTRO,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50487
Plaintiff - Appellee, D.C. No. 3:10-cr-02242-JM-4
v.
STEPHEN KENNETH CHRYSLER,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-50609
Plaintiff - Appellee, D.C. No. 3:10-cr-02242-JM-4
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
STEPHEN KENNETH CHRYSLER,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-50229
Plaintiff - Appellee, D.C. No. 3:10-cr-02242-JM-5
v.
AIDA AGUSTI CASTRO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted March 6, 2014
Pasadena, California
Before: PAEZ, N.R. SMITH, and HURWITZ, Circuit Judges.
Defendant Aida Agusti Castro appeals her conviction for four counts of wire
fraud under 18 U.S.C. § 1343 and the district court’s restitution order. Defendant
Stephen K. Chrysler appeals his conviction for five counts of wire fraud under 18
U.S.C. § 1343, his sentence, and the district court’s restitution order. We affirm
Castro’s and Chrysler’s convictions, affirm Chrysler’s sentence, affirm the
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restitution award against Castro, and dismiss as untimely Chrysler’s appeal of the
restitution award.
1. The district court did not abuse its discretion in admitting lender
verification documents into evidence under Federal Rules of Evidence 803(6) and
902(11). See United States v. Fuchs, 218 F.3d 957, 965 (9th Cir. 2000). A number
of the verification documents appeared trustworthy on their face; verification steps
were recorded on forms containing company letterhead, and the underwriter who
conducted the verification signed the form. Moreover, the reliability of all of the
documents was further buttressed by testimony that confirmed lenders engaged in
verification practices. Contrary to Defendants’ arguments, there is no indication
that anyone involved in verifying the loan applications in this case was forging
verification documentation, or that this practice was so rampant in the industry as
to render all verification documentation untrustworthy.
2. The district court correctly held that the verification documents did not
implicate the Confrontation Clause. Business records “created for the
administration of an entity’s affairs and not for the purpose of establishing or
proving some fact at trial . . . are not testimonial” and may be admitted absent
confrontation. Melendez-Diaz v. Massachussetts, 557 U.S. 305, 324 (2009); see
also United States v. Rojas-Pedroza, 716 F.3d 253, 1267 (9th Cir. 2013). Here,
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there was ample evidence that the verification documents were created for the
purpose of determining whether a loan application should be approved, and not for
use in court. Borrowers testified that they had been warned banks might call to
verify certain information. An accountant and a purported customer testified that
they received verification calls related to loan applications. Lender employees
testified that verification was a key part of the loan application process.
3. The district court did not err in denying Castro’s and Chrysler’s motions
for judgment of acquittal. In ruling on sufficiency-of-the-evidence challenges,
courts consider “the evidence in the light most favorable to the prosecution” and
ask whether, viewing the evidence in this light, “any rational 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). Here, the verification documents,
lender testimony, borrower testimony, other witness testimony, and the steps
Castro and Chrysler took to obtain supporting documentation for the fraudulent
loan applications they submitted all support the inference that misrepresentations
in the applications were material.
4. The district court did not afford excessive or presumptive weight to the
Sentencing Guidelines recommended range in sentencing Chrysler. See United
States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc). The record reflects
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that the district court carefully considered all of the sentencing factors in 18 U.S.C.
§ 3553(a). In fact, the court repeatedly mentioned Chrysler’s family circumstances
and his lack of prior criminal history. Ultimately, however, the court determined
that a custodial sentence of thirty-seven months, the low end of the Guidelines
range, gave proper consideration to Chrysler’s equities, the seriousness of the
offense, the need for deterrence, and the need to avoid unwarranted sentencing
disparities.
5. We dismiss Chrysler’s appeal of the restitution award as untimely under
Federal Rule of Appellate Procedure 4(b). Rule 4(b)(1) provides that “[i]n a
criminal case, a defendant’s notice of appeal must be filed in the district court
within 14 days after the later of: (i) the entry of either the judgment or the order
being appealed; or (ii) the filing of the government’s notice of appeal.” Subsection
(b)(2) creates a limited exception to the requirements set out in subsection (b)(1),
providing that a premature notice of appeal “filed after the court announces a
decision, sentence, or order—but before the entry of the judgment or order—is
treated as filed on the date of and after the entry.” However, subsection (b)(2) does
not aid Chrysler because his three notices of appeal of the district court’s
restitution award were all filed months before the district court had even held a
restitution hearing. Although the timeliness requirement of Rule 4(b) is not
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jurisdictional, when the government does object, dismissal is mandatory. United
States v. Sadler, 480 F.3d 932, 938–42 (9th Cir. 2007). Here, by raising the issue
in its answering brief, the government timely raised the defect. Id. at 940–41.
6. Our case law forecloses Castro’s argument that Apprendi v. New Jersey,
530 U.S. 466 (2000) applies to restitution. United States v. Green, 722 F.3d 1146,
1149–51 (9th Cir. 2013). No recent Supreme Court case is clearly irreconcilable
with our rule, and we are therefore bound to follow Green. See Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc).
7. The district court did not abuse its discretion in ordering Castro to pay
restitution for losses arising out of uncharged and acquitted conduct. “[W]hen
someone is convicted of a crime that includes a scheme, conspiracy, or pattern of
criminal activity as an element of the offense, the court can order restitution for
losses resulting from any conduct that was part of the scheme, conspiracy, or
pattern of criminal activity.” United States v. Reed, 80 F.3d 1419, 1423 (9th Cir.
1996) (emphasis omitted); see also United States v. Brock-Davis, 504 F.3d 991,
998–99 (9th Cir. 2007); United States v. Grice, 319 F.3d 1174, 1177–78 (9th Cir.
2003). The elements of 18 U.S.C. § 1343 include “a scheme to defraud.” United
States v. Shipsey, 363 F.3d 962, 971 (9th Cir. 2004). Consequently, the restitution
award in a wire fraud case may include losses stemming from uncharged and
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acquitted conduct if the district court determines, by a preponderance of the
evidence, that the losses all stem from the same scheme. See 18 U.S.C. § 3664(e);
United States v. Booth, 309 F.3d 566, 571, 575–76 (9th Cir. 2002). Here, the
consistent role Castro played in preparing the fraudulent loan applications that did
correspond to charged and convicted offenses, as evidenced by numerous trial
witnesses, supported an inference that all of the losses included in the restitution
order stemmed from loans that were part of the same common scheme.
9. Finally, the district court’s restitution order comports with United States
v. Yeung, 672 F.3d 594 (9th Cir. 2012). The district court awarded restitution
based on the unpaid principal balance of a loan only when the government
presented evidence that the unpaid principal balance reflected the actual losses
sustained by the victims. See id. at 601–02. And, in calculating offsets to victim
losses, the district court only used the subsequent sale price of the collateral instead
of the value of the collateral at the time the victims took control of the property,
see id. at 604, when the government submitted evidence that the subsequent sale
price was higher than the value of the collateral at the time the victim took control
of the properties.
DISMISSED in part, AFFIRMED in part.
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