United States v. Moreland ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30541
Plaintiff-Appellee, D.C. No.
v.  CR-01-00108-05-
STEVEN CRAIG MORELAND, BJR
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Western District of Washington
Barbara Jacobs Rothstein, District Judge, Presiding
Argued and Submitted May 9, 2007
Submission Withdrawn May 25, 2007
Resubmitted December 5, 2007
Seattle, Washington
Filed December 12, 2007
Before: Procter Hug, Jr., M. Margaret McKeown, and
William Fletcher, Circuit Judges.
Opinion by Judge Hug
16329
16334 UNITED STATES v. MORELAND
COUNSEL
Jordan Gross, Yarmuth Wilsdon Calfo PLLC, Seattle, Wash-
ington, for the defendant-appellant.
Andrew C. Friedman, Assistant United States Attorney, Seat-
tle, Washington, for the plaintiff-appellee.
OPINION
HUG, Circuit Judge:
For his participation in a fraudulent pyramid scheme,
defendant-appellant Steven Moreland was convicted of mail
and wire fraud, money laundering, and conspiracy to commit
mail and wire fraud and money laundering. On remand, the
district court imposed a revised sentence of 18 years in prison
and ordered Moreland to pay restitution to the victims in the
amount of slightly over $36 million. Moreland appeals his
conviction on the grounds that he involuntarily waived his
right to counsel and received ineffective assistance of counsel,
the district court erred in not granting an adequate continu-
ance, the prosecution committed misconduct resulting in a
violation of his due process rights, and insufficiency of the
evidence. Moreland also appeals his sentence on the basis that
it is unreasonable under 18 U.S.C. § 3553(a). Finally, More-
land appeals the imposition of restitution because the district
court failed to comply with the time frame outlined in
§ 3664(d)(5) of the Mandatory Victims Restitution Act. We
find that none of Moreland’s arguments warrants reversal and,
thus, we affirm.
UNITED STATES v. MORELAND 16335
I.
Moreland participated in an enormous pyramid scheme
that, from November 1997 until May 2000, swindled approxi-
mately 2,500 people out of more than $73 million. Many of
the victims in this case were of retirement age and invested
much or all of their savings in the scheme, which promised
astronomical returns. In reality, Moreland and his associates
were conducting a massive fraud in which a portion of the
funds from later investors were used to pay the promised
returns of some earlier investors. Most earlier investors were
convinced to roll their fictional returns over into supposed
new investment opportunities. The funds not used to repay
earlier investors were paid to the operators of the scheme or
squandered on unsound financial misadventures.
The federal government finally shut down the scheme on
May 10, 2000, by executing search warrants at the home of
John Wayne Zidar, the mastermind and leader of the scheme,
and the business offices in Washington and Arizona from
which the scheme was conducted. On the day of the searches,
Moreland fled with his family to Costa Rica, where he
planned to stay in order to avoid capture. Although his wife
refused to stay in Costa Rica, necessitating his return to the
United States, Moreland went back to Costa Rica in August
2000. He took with him all of his documents relating to the
scheme in order to prevent the government from obtaining the
records. After supposedly discovering the fraudulent nature of
the enterprise for the first time while in Costa Rica, Moreland
continued transferring money from accounts containing vic-
tims’ investment funds into his own accounts to pay his salary
and personal expenses.
Moreland and his associates were indicted on March 28,
2001. Moreland eventually surrendered on April 3, 2001, in
Tyler, Texas, at which time he was arrested. While driving
from Dallas to Tyler to surrender, Moreland stopped about
half way between in the town of Canton and discarded his
16336 UNITED STATES v. MORELAND
laptop computer in a dumpster behind a Dairy Queen near the
highway.
At his initial appearance in the Western District of Wash-
ington on April 20, 2001, Moreland indicated his desire to
represent himself. Upon the prosecution’s motion, a magis-
trate judge conducted a hearing pursuant to Faretta v. Califor-
nia, 422 U.S. 806 (1975), on April 26 to determine whether
Moreland should be permitted to waive his right to counsel.
The magistrate judge permitted Moreland to represent himself
but concluded that standby counsel should assist him. Ralph
Hurvitz was then appointed to facilitate Moreland’s defense.
The district judge conducted a second Faretta hearing on June
5, at the request of the prosecution, at which time she urged
Moreland not to represent himself. Nonetheless, the district
judge concluded that Moreland had knowingly and intelli-
gently waived his right to counsel and permitted him to con-
tinue representing himself. The district judge further directed
Hurvitz to continue acting as standby counsel.
In a second superceding indictment issued on January 8,
2002, Moreland was charged with ten counts of mail fraud in
violation of 18 U.S.C. § 1341, six counts of wire fraud in vio-
lation of 18 U.S.C. § 1343, four counts of promotion money
laundering in violation of 18 U.S.C. § 1956(a)(1), four counts
of concealment money laundering involving foreign transfers
in violation of 18 U.S.C. § 1956(a)(2), conspiracy to commit
mail and wire fraud in violation of 18 U.S.C. § 371, and con-
spiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(h). The second superceding indictment also contained
a criminal forfeiture count relating to numerous items of both
real and personal property in the possession of the defendants
as well as funds seized from bank accounts in the United
States, Samoa, Costa Rica, and the Bahamas.
On April 23, 2002, Moreland filed a motion to have a law-
yer appointed to represent him. The district court held a hear-
ing on the motion on May 6, 2002, and Hurvitz was appointed
UNITED STATES v. MORELAND 16337
to represent him because of his familiarity with the case. The
trial was set for June 10, 2002. Hurvitz stated that he wanted
additional time to prepare, but Moreland opposed a continu-
ance. The district court granted a continuance of two weeks
until June 24, 2002. Hurvitz served as Moreland’s counsel
during the trial.
On August 14, 2002, after a 34-day trial, a jury found
Moreland guilty on three counts of mail fraud, three counts of
wire fraud, two counts of promotion money laundering, four
counts of concealment money laundering involving foreign
transfers, and both conspiracy charges. Zidar was also found
guilty on all 25 counts on which he was charged and sen-
tenced to 30 years in prison. United States v. Zidar, 178 Fed.
Appx. 673, *1 (9th Cir. 2006)
In determining Moreland’s sentence, the district court
adopted the Sentencing Guidelines calculation set forth in the
original Presentence Report. Accordingly, the district court
began with a base offense level of 43 and criminal history cat-
egory I, which resulted in a sentence range of life imprison-
ment. The district court departed downward three points due
to Moreland’s mental state, resulting in a base offense level
of 40 and a criminal history category of I. The applicable sen-
tence range, under the 1998 edition1 of the U.S. Sentencing
Commission Guidelines Manual, was 292-365 months in
prison. The district court sentenced Moreland to 292 months
in prison, the bottom of the sentencing range, on August 22,
2003. At the prosecution’s request, the district court also
deferred the issue of restitution pending a determination by a
receiver in a related civil case, brought by the U.S. Securities
and Exchange Commission, of the identities of victims and
the amounts of their losses. The district court’s order explic-
itly stated that it would “enter a subsequent order identifying
the payees and the amount of restitution owed to each payee.”
1
The 1998 edition was used to avoid a possible violation of the ex post
facto clause.
16338 UNITED STATES v. MORELAND
Moreland did not object to the district court’s deferral of the
restitution determination.
Moreland then appealed his conviction and sentence, but
not the district court’s deferral of restitution, to this court. Fol-
lowing the Supreme Court’s decision in Blakely v. Washing-
ton, 542 U.S. 296 (2004), a prior panel of this court remanded
for resentencing under the now-advisory Sentencing Guide-
lines on December 14, 2004. The remand order did not
address the substantive issues raised in Moreland’s appeal.
On remand, the district court ordered the preparation of a
Revised Presentence Report. In March 2005, while the
Revised Presentence Report was being prepared, the receiver
completed its task of identifying victims and the amounts of
their losses. The government then submitted its Revised Pre-
sentence Report on November 1, 2005. The Revised Presen-
tence Report, which contained the list of victims and losses,
recommended that the district court adopt the same Sentenc-
ing Guidelines calculation as in the original sentence and
order restitution in the amount of $36,031,772.84 pursuant to
18 U.S.C. § 3663A.
The district court held a sentencing hearing on November
7, 2005, at which time the district court adopted the Sentenc-
ing Guidelines range recommended in the Revised Presen-
tence Report and found by clear and convincing evidence the
factors on which the recommendation was based. In light of
United States v. Booker, 543 U.S. 220 (2005), the district
court examined the sentencing factors listed in 18 U.S.C.
§ 3553(a) and reduced Moreland’s sentence to 216 months
(18 years) in prison. The district court also imposed
$36,031,772.84 in restitution. Moreland appealed his convic-
tion as well as the revised sentence and restitution order on
November 10, 2005.
II.
Moreland appeals his conviction by alleging denial of his
right to counsel, ineffective assistance of counsel, improper
UNITED STATES v. MORELAND 16339
failure of the district court to grant a continuance, prosecu-
torial misconduct, and insufficiency of the evidence.
A.
[1] First, Moreland argues that he involuntarily waived his
right to counsel. The Sixth Amendment of the U.S. Constitu-
tion guarantees that a person brought to trial in federal court
“must be afforded the right to the assistance of counsel before
he can be validly convicted and punished by imprisonment.”
Faretta, 422 U.S. at 807. A criminal defendant may waive the
right to counsel and represent himself. Id. at 819-20. When a
defendant requests to proceed pro se, a district court may only
grant the request after determining that the defendant “know-
ingly and intelligently” waived the right to counsel. Id. at 835.
Once a district court has determined that a defendant’s waiver
of his right to counsel is knowing and intelligent, it may
appoint standby or “advisory” counsel to assist the pro se
defendant without infringing on his right to self-
representation. McKaskle v. Wiggins, 465 U.S. 168, 176-77
(1984). At the same time, a defendant who waives his right
to counsel does not have a right to advisory counsel. United
States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996); United
States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994).
Generally, the role of standby counsel is vague and undefined,
and the defendant must retain control over his case. Mc-
Kaskle, 465 U.S. at 177-78.
The district court conducted two separate Faretta hearings
in this case and, after each hearing, concluded that More-
land’s requested waiver was both knowing and intelligent.
The district court also appointed standby counsel to assist
Moreland. Moreland argues on appeal, however, that his
waiver of his right to counsel was conditioned on assurances
from the district court regarding the level of assistance he
could expect to receive from standby counsel. Those assur-
ances were not satisfied, according to Moreland, because
standby counsel did not provide as much assistance as More-
16340 UNITED STATES v. MORELAND
land expected. For that reason, Moreland argues that his
waiver of his right to counsel was not voluntary.2
The validity of a Faretta waiver is a mixed question of law
and fact reviewed de novo. United States v. Erskine, 355 F.3d
1161, 1166 (9th Cir. 2004).
[2] The record undermines Moreland’s assertion that his
waiver was conditioned on specific assurances from the dis-
trict court regarding the level of participation he could expect
from standby counsel. During the second Faretta hearing,
which the prosecution requested after learning that Moreland
was receiving assistance with his case from Donald Mueller,
a former co-participant in the pyramid scheme who was not
licensed to practice law and who was scheduled to appear as
a witness on Moreland’s behalf, the district judge engaged in
a lengthy discussion with Moreland, ensuring that he under-
stood the charges against him and the disadvantages of repre-
senting himself. Indeed, the district judge “strongly urge[d]”
Moreland to obtain counsel. Nevertheless, Moreland insisted
on representing himself. The district judge concluded that his
waiver was voluntary and directed Hurvitz to continue serving
as standby counsel. In continuing Hurvitz’s participation as
standby counsel, the district judge did not promise any spe-
cific degree of assistance. Rather, the district judge explicitly
noted that the role of standby counsel was undefined. As the
2
Moreland relies on Milton v. Morris, 767 F.2d 1443 (9th Cir. 1985),
for the proposition that a defendant who waives his right to counsel based
on an understanding that he will have assistance with his pro se defense
has not knowingly and intelligently waived his right to counsel under
Faretta. The two cases are not similar. In Milton, the district court and
prison officials blocked the defendant’s access to legal materials, tele-
phone use, investigators, couriers, and witness. Id. at 1444-45. Here,
Moreland had more than ample access to the means necessary to prepare
his defense. Moreover, Moreland received assistance from standby coun-
sel, just not the degree of assistance he later decided he wanted. Addition-
ally, the district court repeatedly advised Moreland to withdraw his waiver
and request representation, but he refused to do so. When Moreland even-
tually did withdraw his waiver, the district court appointed counsel.
UNITED STATES v. MORELAND 16341
district judge explained: “So his position in this case to a large
extent is determined by your position in the case. . . . It’s hard
to tell now what’s going to happen. Cases develop often with
a life of their own. . . . But what his role is to a large extent
will be determined on how you use him.” The district judge
went on to make clear that Moreland and Hurvitz would have
to “play this by ear.” That explanation of the role of standby
counsel was not specific. Thus, contrary to Moreland’s con-
tention, the district court made no assurances upon which he
could have reasonably conditioned his waiver of counsel.
Furthermore, if Moreland did not believe that standby
counsel was living up to his expectations, he had ample
opportunity to waive his right to self-representation and
request the district court to appoint full counsel. In fact, after
the second Faretta hearing, Moreland began complaining
about Hurvitz’s representation almost immediately. Among
other things, Moreland accused Hurvitz of refusing to famil-
iarize himself with the case, review the evidence, assist with
discovery, and “offer any assistance beyond filing a few
motions.” In September 2001, Moreland requested to have
Hurvitz replaced by “non-representational counsel”—that is,
Mueller. The district judge denied Moreland’s request, stating
that although the role of standby counsel is “vague and unde-
fined, the court instructed Hurvitz to fill that role as appropri-
ately as possible under the circumstances.” The district judge
further stated that “it was the court’s understanding during the
Faretta hearing that Moreland expected little more from Hur-
vitz than fulfillment of basic administrative responsibilities.”
The district judge further explained that “based on representa-
tions from Moreland that he wishes to represent himself, Hur-
vitz is prohibited from contributing beyond a basic level to
Moreland’s case, for risk of encroaching on Moreland’s
Faretta rights.” The district court went on to state that “More-
land is requesting, and Hurvitz is resisting, more participation
than courts creating the standby counsel role anticipated.”
Consequently, the district court clearly informed Moreland
well in advance of trial what he could and could not expect
16342 UNITED STATES v. MORELAND
from standby counsel. If Moreland’s waiver of his right to
counsel was truly conditioned on his expectation that Hurvitz
would play a larger role in his defense, he could have with-
drawn his waiver and asked the district court to appoint full
counsel at that time. He did not do so.
Instead of waiving his right to self-representation, More-
land filed additional pleadings in October and December
2001, in which he suggested that the district court was unlaw-
fully preventing Mueller from representing him. The district
court again admonished Moreland that Mueller would not be
permitted to represent him. The district court also informed
Moreland that, unless he was willing to allow Hurvitz to rep-
resent him, he was not entitled to greater assistance than Hur-
vitz was already providing. Again, Moreland declined to
waive his right to self-representation and have full counsel
appointed. Despite Moreland’s ostensible disappointment
with Hurvitz’s performance as standby counsel, Moreland did
not withdraw his waiver and request that counsel be appointed
to represent him until April 23, 2002.
[3] At no point did the district court lead Moreland to
believe that he would receive substantial assistance with his
case from standby counsel. Thus, Moreland’s waiver of his
right to counsel was knowing and intelligent.
B.
[4] Second, Moreland claims that he was denied effective
assistance of counsel. “[A]s a general rule, we do not review
challenges to the effectiveness of defense counsel on direct
appeal.” United States v. Jeronimo, 398 F.3d 1149, 1155 (9th
Cir. 2005). Rather, we prefer to review ineffective assistance
of counsel claims in habeas corpus proceedings under 28
U.S.C. § 2255. United States v. Alferahin, 433 F.3d 1148,
1160 n.6 (9th Cir. 2006). We may consider such claims on
direct appeal, however, where “the record on appeal is suffi-
ciently developed to permit determination of the issue.” Id.UNITED STATES v. MORELAND 16343
[5] In this appeal, Moreland makes four arguments in sup-
port of his ineffective-assistance-of-counsel claim: (1) trial
counsel failed to investigate Moreland’s mental health, (2)
trial counsel failed to request an adequate continuance, (3)
trial counsel failed to object to the district court’s limitation
of Moreland’s direct examination, and (4) trial counsel failed
to object to questions regarding the veracity of witnesses on
cross-examination and to the prosecution’s statements during
closing arguments regarding Moreland’s veracity. But the
record is not sufficiently developed to permit determination of
the issues. For example, defense counsel has not had an
opportunity to explain his actions. See United States v.
Laughlin, 933 F.2d 786, 789 (9th Cir. 1991). The record is
also undeveloped with regard to Moreland’s purported mental
health defense, as the government has not conducted its own
psychological evaluation. Without that evaluation, we are
unable to determine whether prejudice resulted from trial
counsel’s failure to investigate. Id. Accordingly, we decline to
consider Moreland’s ineffective assistance of counsel claims
on direct appeal, but he may pursue those claims in collateral
proceedings. Jeronimo, 398 F.3d at 1156.
C.
Third, Moreland contends that the district court erred in
failing to grant an adequate continuance. Here, the district
court granted a two-week continuance over Moreland’s objec-
tion. But Moreland argues that the district court should have
sua sponte granted a lengthier continuance to allow his trial
counsel adequate time to prepare. A district court’s decision
to grant or deny a continuance is reviewed for abuse of discre-
tion, even where a defendant fails to make a formal motion
for a continuance. United States v. Nguyen, 262 F.3d 998,
1002 (9th Cir. 2001). There is no abuse of discretion unless
the denial was “arbitrary or unreasonable.” United States v.
Wills, 88 F.3d 704, 711 (9th Cir. 1996).
[6] The district court did not abuse its discretion in granting
only a two-week continuance, however, because the need for
16344 UNITED STATES v. MORELAND
a continuance was Moreland’s fault. See United States v.
Fowlie, 24 F.3d 1059, 1069 (9th Cir. 1994). The district court
repeatedly advised Moreland to withdraw his waiver of coun-
sel and accept representation. For example, the district judge
told Moreland “[i]f you exclude Mr. Hurvitz early on, then
turn to him later, he’s going to be severely handicapped, in
ways he wouldn’t be if he were your attorney right from the
beginning.” But Moreland insisted on relying on Mueller, a
co-participant in the criminal enterprise and an unlicensed
lawyer, as legal counsel. Moreland did not request representa-
tion until two months before trial. When Moreland finally did
accept counsel, he opposed his trial counsel’s expressed
desire for a continuance and prevented trial counsel from
requesting more time to prepare. He even opposed the two-
week continuance granted sua sponte by the district court.
Consequently, Moreland was clearly to blame both for the
delay and for the district court not granting a longer continu-
ance. The district court’s decision to grant only a two-week
continuance, when Moreland objected to any continuance,
was not “arbitrary or unreasonable;” therefore, the district
court did not abuse its discretion.
D.
Fourth, Moreland argues that his due process rights were
violated because the government committed prosecutorial
misconduct by questioning Moreland about the veracity of
two prosecution witnesses during cross-examination and by
casting doubt upon Moreland’s veracity during closing argu-
ments. Moreland did not object at trial. “We review claims of
prosecutorial misconduct for plain error when a defendant
failed to object at trial.” United States v. Washington, 462
F.3d 1124, 1136 (9th Cir. 2006); see Fed. R. Crim. P. 52(b).
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 pro-
UNITED STATES v. MORELAND 16345
ceedings.” United States v. Recio, 371 F.3d 1093, 1100 (9th
Cir. 2004).
1.
[7] Moreland first asserts that his due process rights were
violated when the prosecution compelled him to testify
regarding whether two government witnesses lied during their
testimony. It is improper for a prosecutor to question a defen-
dant regarding the veracity of a government witness. United
States v. Combs, 379 F.3d 564, 572 (9th Cir. 2004); see also
United States v. Sanchez-Lima, 161 F.3d 545, 548 (9th Cir.
1998) (holding that testimony regarding witness’ credibility is
prohibited unless it is admissible as character evidence). In
this case, the prosecutor twice asked Moreland about the
veracity of government witnesses during his cross-
examination. The first instance involved Juan Alvarez, a
Costa Rican attorney with whom Moreland left all of his doc-
umentation regarding the criminal enterprise. Alvarez testified
that he never had an attorney-client relationship with More-
land, whereas Moreland claimed Alvarez was his lawyer. The
prosecutor asked Moreland to testify regarding Alvarez’s
veracity on this point:
Q. You’re telling us he was your lawyer?
A. Yes, he was.
Q. You heard his testimony. He said he had no cli-
ent relationship with you.
A. That was his testimony.
Q. He’s lying?
A. I don’t know why he would be, but he has to be.
Q. So he’s a liar. Right?
16346 UNITED STATES v. MORELAND
A. I don’t know why, but yes.
The second instance involved Lisa Green, a former adminis-
trative assistant who testified about statements Moreland
made concerning the ownership of a house in Texas and
whether Moreland paid his personal expenses with money
from a trust set up with investor funds. She also testified that
Moreland had lied to investors about his health. The prosecu-
tion’s questioning of Moreland transpired as follows:
Q. Lisa Green told us you had that checkbook in
your house?
A. Yes, sir, she did.
Q. And she told us that you would sign Jeff Lewis
and Derral Hineman’s names to those checks.
Remember her testimony?
A. That’s what her testimony was. That is not true.
Q. She’s lying?
A. I just was never allowed to sign their signatures.
There was no reason to.
Q. When she told this jury she saw you signing
Jeff Lewis’s name, she’s lying. Right, Mr.
Moreland?
A. No. I think she could have been mistaken. . . .
...
Q. You told Ms. Green that this house was your
house, didn’t you?
A. No, sir, I did not.
UNITED STATES v. MORELAND 16347
Q. So she’s lying about that?
A. You know, people jump to conclusions . . . .
Q. If Ms. Green said you told her this was your
house, was she lying about that?
A. Yes, sir, she would be. I’ve never had a discus-
sion with her like that.
Q. Why do you think she would come in here and
lie under oath about you?
A. Well, probably because I fired her.
...
Q. So if [Ms. Green] said you were healthy, she’s
lying.
A. You’re trying to twist something here of what
is this sabbatical.
The prosecutor’s questioning is clearly improper under our
case law. In United States v. Geston, 299 F.3d 1130 (9th Cir.
2002), a case involving the prosecution of a police officer for
unreasonable use of force, we held that a prosecutor’s ques-
tioning of two law enforcement officers during cross-
examination improperly compelled the witnesses to offer
opinions regarding the veracity of government witnesses. Id.
at 1136-37. When cross-examining two defense witnesses, the
prosecution in Geston summarized prior government witness
testimony that contradicted each defense witness’s testimony,
and then asked whether the defense witness thought the gov-
ernment witness was lying. Id. at 1135-36. We held this type
of questioning to be improper. Id. at 1136. Similarly, in
Combs, we found that the prosecution improperly questioned
the defendant regarding whether a government agent lied dur-
16348 UNITED STATES v. MORELAND
ing his testimony. 379 F.3d at 572. The questioning in this
case also resembles the questioning in United States v. San-
chez, 176 F.3d 1214 (9th Cir. 1999), in which we held that
compelling a defendant to call a government agent a liar was
improper. Id. at 1220. The following constituted the line of
questioning deemed improper in Sanchez:
Q. You heard Deputy Marshal Fielder testify this
morning?
A. Yes, I did.
Q. You were telling the ladies and gentlemen of
the Jury that he lied to them?
A. Yes, I did.
Q. That is what you are saying, he lied this morn-
ing?
Id. at 1219. The questioning in this case is not only similar in
nature to that in Sanchez, it is lengthier and more accusatory.
Therefore, the prosecutor’s cross-examination of Moreland
was improper.
The government argues, however, that the prosecutor’s
questions regarding Green and Alvarez were proper because
Moreland “invited” questions regarding their veracity.
According to the government, Moreland opened the door to
the issue of Green’s credibility by stating “That’s what her
testimony was. That is not true.” The government seems to
suggest that the prosecution had no choice but to follow up
Moreland’s statement by asking whether Green was lying.3
This argument makes little sense on its own, especially when
compared to the questioning in Sanchez, and becomes com-
3
The government offers no specific rationale to support its argument
that Moreland “invited” testimony regarding Alvarez’s veracity.
UNITED STATES v. MORELAND 16349
pletely invalid when considering the entire line of question-
ing. The prosecutor asked whether Moreland considered
Green a liar six times. Moreland tried to explain that Green
was not a liar four times, but the prosecutor persisted with
questions regarding her veracity. Consequently, the govern-
ment cannot plausibly claim that its questions about Green’s
truthfulness were “invited.”
[8] Even though the prosecution’s questioning was
improper, it does not amount to plain error. “A prosecutor’s
improper questioning is not in and of itself sufficient to war-
rant reversal. It must also be determined whether the prosecu-
tor’s actions ‘seriously affected the fairness, integrity, or
public reputation of judicial proceedings, or where failing to
reverse a conviction would result in a miscarriage of jus-
tice.’ ” Geston, 299 F.3d at 1136 (quoting United States v.
Tanh Huu Lam, 251 F.3d 852, 862 (9th Cir. 2001) (citation
omitted), and citing Ortiz v. Stewart, 149 F.3d 923, 934 (9th
Cir. 1998)). Moreland argues that the prosecutor’s questions
prejudiced his defense and affected the integrity of his trial
because Moreland’s knowledge and intent were the main
issues at trial and credibility of the witnesses was central to
the prosecution’s case. As the government points out, the
prosecution presented more than 75 witnesses in this case.
Furthermore, Green and Alvarez were peripheral witnesses
because they testified regarding matters of minor importance
to the case. In fact, Moreland himself admits that an IRS
agent was the prosecution’s key witness. In the context of this
long and complicated trial, in which witness credibility was
not paramount, the prosecution’s questioning of Moreland
regarding those two non-essential witnesses did not prejudice
his defense, affect his substantial rights, or diminish the integ-
rity of the judicial proceedings.
2.
[9] Moreland next argues that his due process rights were
violated by the prosecution’s statements during closing argu-
16350 UNITED STATES v. MORELAND
ments regarding Moreland’s veracity. As a general rule, “a
prosecutor may not express his opinion of the defendant’s
guilt or his belief in the credibility of [government] witness-
es.” United States v. McKoy, 771 F.2d 1207, 1211 (9th Cir.
1985). This concept has been extended to find that referring
to a defendant as “a liar” during closing argument, when that
assertion is not based on “reasonable inferences,” is improper.
See United States v. Garcia-Guizar, 160 F.3d 511, 520 (9th
Cir. 1998). At the same time, we have recognized that “the
prosecution must have reasonable latitude to fashion closing
arguments.” United States v. Molina, 934 F.2d 1440, 1445
(9th Cir. 1991). As a result, it is “neither unusual nor
improper for a prosecutor to voice doubt about the veracity of
a defendant who has taken the stand.” United States v. Birges,
723 F.2d 666, 672 (9th Cir. 1984). Indeed, we have found
that, in “instances of flatly contradictory testimony on impor-
tant issues . . . it [is] proper for the government to argue that
the jury ought not to believe the [defendant’s] version.”
Molina, 934 F.2d at 1445. Thus, the prosecution may refer to
a defendant as a liar if it is “commenting on the evidence and
asking the jury to draw reasonable inferences.” Garcia-
Guizar, 160 F.3d at 520; see also United States v. Rude, 88
F.3d 1538, 1548 (9th Cir. 1996) (holding that a prosecutor’s
use of the words “lie,” “lies,” or “lied” over 90 times when
referring to the defendants in its closing argument was
“within the boundaries of proper . . . summations.”).
In this case, the prosecutor referred to Moreland as a liar
several times throughout his closing argument. To illustrate,
Moreland points to the following statement:
Remember, I asked Mr. Moreland about [being a
liar] on the witness stand. I said: Hey, if this jury
finds that you lied, can they apply your own words
to yourself and conclude that as to you, once a liar
always a liar? And you saw the little cogs in his head
spin. He didn’t know quite what to say. He was in
kind of a jam there. He paused, he delayed, and he
UNITED STATES v. MORELAND 16351
finally begrudgingly said: Yeah, they can conclude
once a liar, always a liar. Make Mr. Moreland eat
those words. And you can find so many lies he told.
I’ll tell you some of them. But when you go back in
there, you can probably make a list of 50 lies he told.
...
So once you conclude Mr. Moreland is a liar, then
nothing he told you is believable.
The prosecutor then went on to point out specific examples of
contradictory testimony pointing to the conclusion that More-
land was not telling the truth. For example, the prosecutor
specifically discussed Moreland’s explanation of the invest-
ment scheme and how Moreland merged his enterprise with
scheme mastermind Zidar’s, Moreland’s denial that the house
he lived in was actually his, Moreland’s denial that he threw
his laptop into a dumpster, and whether Moreland knew of the
government’s search of Zidar’s house when he fled to Costa
Rica. The prosecution then went on to remind the jurors that
it was their job to evaluate the credibility of the witnesses and
defendants.
[10] This case is similar to Molina, in which the prosecutor
explained how the defendant’s testimony directly conflicted
with that of a confidential informant and then stated that the
defendant must have lied. 934 F.2d at 1445. In Molina, the
defendant objected to the following passage from the prosecu-
tion’s closing argument:
[Y]ou could only come to one conclusion: That
somebody is lying. And who is that? Who’s lying?
Is Special Agent Reyes lying? Did he get up on the
stand under oath and lie to you for the sole purpose
of convicting an innocent man? It’s unbelievable.
The one who lied to you is the one who is guilty
of possessing with the intent to distribute the
16352 UNITED STATES v. MORELAND
cocaine. And that’s the defendant, Frank Molina.
And when you weigh the credibility of the witnesses,
remember that there was one witness here who had
a greater motive to lie than any other witness, a
greater stake in this case than either Art Reyes or
Alvaro or Agent Leppla or anybody, and that man
was the defendant, Frank Molina. He had the great-
est bias in this case and the greatest motive to lie.
So when you go back into the jury room remem-
ber . . . that Mr. Molina lied to you on the stand and
remember that the reason he lied to you is because
he is guilty, and that’s the only reason and the only
motivation for him to lie.
Id. (alterations in original) (emphasis in original). We found
that “the inference is unavoidable that ‘somebody is lying’ ”
and that the prosecutor’s statements were proper based on the
evidence. Id. Similarly, the prosecutor’s statements in this
case were reasonable based on the evidence, which the prose-
cutor demonstrated by carefully walking the jury through the
evidence and pointing out inconsistencies. Therefore, based
on the case law, the prosecutor’s statements regarding More-
land’s credibility were not improper.
Moreover, the prosecutor’s statement did not affect More-
land’s substantial rights. Even if the prosecutor’s statements
were improper, Moreland must show that the statements
affected the outcome of his trial. United Stated v. Romero-
Avila, 210 F.3d 1017, 1022 (9th Cir. 2000). Where the gov-
ernment “presented strong independent evidence of [the
defendant’s] guilt,” a prosecutor’s improper statements about
the defendant during cross-examination will not be found to
have affected the defendant’s substantial rights. Id. at 1023;
see also United States v. Laurins, 857 F.2d 529, 539 (9th Cir.
1988) (“If the evidence was so strong that these remarks had
no effect on the jury, reversal is not required.”). Here, the
government presented strong independent evidence that
UNITED STATES v. MORELAND 16353
Moreland knowingly engaged in a massive fraud. Addition-
ally, the district court properly instructed the jury that
“[a]rguments and statements by lawyers are not evidence” and
what the lawyers said “in their closing arguments . . . is not
evidence.” As a result, Moreland has not shown that the pros-
ecutor’s statements during closing arguments affected the out-
come of the proceedings. See Sassounian v. Roe, 230 F.3d
1097, 1106-07 (9th Cir. 2000).
[11] Moreland also objects to what he considers the prose-
cutor’s misstatement of the law in its closing argument. Obvi-
ously, a “prosecutor should not misstate the law in closing
argument.” United States v. Berry, 627 F.2d 193, 200 (9th Cir.
1980). Moreland argues that the following statement by the
prosecutor to the jury constituted a misstatement of the law
governing the case:
So when you’re assessing credibility, look at who
got up on that stand and answered questions straigh-
forwardly, and look who tried to duck and weave.
And once you conclude they’re not credible, case is
over.
But Moreland ignores the fact that the prosecutor spent a sub-
stantial amount of time reviewing the legal elements of the
charges and discussing which facts the jury needed to find in
order to convict Moreland. In doing so, the prosecutor accu-
rately explained exactly what the government had to prove to
find Moreland guilty. Consequently, the single, brief state-
ment highlighted by Moreland is neither improper nor did it
affect his substantial rights. “Put in proper context,” the state-
ment was an “isolated moment” in a 34-day trial. See Hall v.
Whitley, 935 F.2d 164, 165-66 (9th Cir. 1991). Moreland’s
due process rights were not violated.
E.
Fifth, Moreland challenges his conviction for money laun-
dering and conspiracy to commit money laundering, arguing
16354 UNITED STATES v. MORELAND
the evidence submitted at trial was insufficient to support the
jury’s verdict. “Claims of insufficient evidence are reviewed
de novo.” United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th
Cir. 2004). There is sufficient evidence to support a convic-
tion if, “viewing the evidence in the light most favorable to
the prosecution, 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) (emphasis in
original).
Moreland was convicted of two counts of promotion money
laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i)
(Counts 26 and 27), four counts of concealment money laun-
dering involving foreign transfers in violation of 18 U.S.C.
§ 1956(a)(2)(B)(i) (Counts 33-36), and conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h) (Count
38).
Regarding the two promotion counts (Counts 26 and 27),
18 U.S.C. § 1956(a)(1) makes it a crime to conduct a financial
transaction “which in fact involves the proceeds of specified
unlawful activity . . . with the intent to promote the carrying
on of specified unlawful activity.” 18 U.S.C. § 1956(a)(1)
(A)(i). The counts on which Moreland was convicted
involved transfers from accounts controlled by Meliorations
Management Team (“Meliorations”), a trust established to
collect funds from investors, to two sales agents with the pur-
pose of paying their commissions. Moreland argues that only
Zidar, Elizabeth Anne Phillips (the administrator for the
enterprise), and Susan Fitzgerald (who filled in temporarily
for Phillips) had access to the Meliorations accounts and that
Phillips and Fitzgerald alone conducted wire transfers and
paid sales agents’ commissions. Additionally, Moreland
argues that the prosecution offered no evidence that Moreland
was involved in the transfers comprising the promotion
counts. For those reasons, Moreland claims his conviction on
the promotion counts should be vacated for lack of sufficient
evidence.
UNITED STATES v. MORELAND 16355
Regarding the four concealment counts (Counts 33, 34, 35,
and 36), 18 U.S.C. § 1956(a)(2) makes it a crime to transfer
funds from the United States to a foreign country “knowing
that the . . . funds involved . . . represent the proceeds of some
form of unlawful activity and knowing that such . . . transfer
is designed in whole or in part . . . to conceal or disguise the
nature, the location, the source, the ownership, or the control
of the proceeds of specified unlawful activity.” 18 U.S.C.
§ 1956(a)(2)(B)(i). The counts on which Moreland was con-
victed, Counts 33-36, involved transfers from Meliorations’s
account in Washington to three international business corpo-
ration (“IBC”) accounts in Samoa and an IBC account in the
Bahamas. One of the Samoan IBCs, Millennium, was con-
trolled by Moreland. Yet Moreland argues that the testimony
offered at trial by Phillips and Fitzgerald demonstrated that
only Zidar, Phillips, Fitzgerald, and William Cravens (who
established offshore accounts for the enterprise) were directly
involved in those transactions. According to Moreland, the
prosecution offered no evidence that Moreland was involved
in the transfers comprising the concealment counts. Moreland
argues, therefore, that his conviction is not supported by suffi-
cient evidence.
[12] Moreland’s claim regarding Count 34 is meritless.
That count involved a wire transfer of $510,800 from Melio-
rations to Millennium, an IBC created and controlled by
Moreland and used by him to pay his personal expenses. Phil-
lips testified that this transfer was “for a trade” (i.e., an invest-
ment) and sent offshore to conceal it from the government.
Not only did the prosecution produce evidence in support of
Moreland’s culpability on this count, Moreland virtually
admitted as much in his brief to this court by quoting a por-
tion of Fitzgerald’s testimony in which she states that More-
land “was behind Millennium.” A rational juror could have
concluded that Moreland was therefore involved with the
transfer. Consequently, the evidence is sufficient to uphold his
conviction on Count 34.
16356 UNITED STATES v. MORELAND
[13] There is also sufficient evidence to uphold Moreland’s
convictions on the other money laundering charges, Counts
26, 27, 33, 35, and 36, even though those transactions did not
directly involve Moreland. Under Pinkerton v. United States,
328 U.S. 640 (1946), a conspirator is “criminally liable for the
substantive offenses committed by a co-conspirator when they
are reasonably foreseeable and committed in furtherance of
the conspiracy.” United States v. Long, 301 F.3d 1095, 1103
(9th Cir. 2002) (citing Pinkerton, 328 U.S. at 645-48). Pursu-
ant to the Pinkerton doctrine, sufficient evidence exists in this
case to uphold Moreland’s convictions for the substantive
money laundering charges provided that: (1) there is sufficient
evidence to uphold his conviction for conspiracy, (2) the
money laundering offenses were committed in furtherance of
the conspiracy while Moreland was a member of the conspir-
acy, and (3) the actions providing the basis for the substantive
charges were reasonably foreseeable to Moreland.4 Pinkerton,
328 U.S. at 645-48.
[14] Section 1956(h) states that “[a]ny person who con-
spires to commit any offense defined in this section . . . shall
be subject to the same penalties as those prescribed for the
offense the commission of which was the object of the con-
spiracy.” 18 U.S.C. § 1956(h). Moreland argues that he did
not have knowledge of the objective of Zidar’s money laun-
dering conspiracy. “Knowledge of the objective of the con-
spiracy is an essential element of any conspiracy conviction.”
United States v. Krasovich, 819 F.2d 253, 255 (9th Cir. 1987).
In asserting that he had no knowledge of the conspiracy,
Moreland claims that he had no connection to Meliorations or
access to its bank accounts, that his clients did not deposit
their money in Meliorations’s accounts, and that his function
in the organization was merely to invest funds. “However, the
existence of an agreement may be inferred from circumstan-
tial evidence.” United States v. Fulbright, 105 F.3d 443, 448
(9th Cir. 1997), overruled on other grounds by United States
4
The jury was properly instructed on these elements.
UNITED STATES v. MORELAND 16357
v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en banc); see
also United States v. Castro, 972 F.2d 1107, 1110 (9th Cir.
1992) (“The government does not have to present direct evi-
dence. Circumstantial evidence and the inferences drawn from
that evidence will sustain a conspiracy conviction.”) (empha-
sis in original). The evidence contradicts Moreland’s conten-
tion.
The government introduced an overwhelming amount of
evidence demonstrating Moreland’s knowledge of the exis-
tence of the conspiracy and agreement to the conspiracy’s
objectives. Moreland worked with Zidar, Cravens, and Phil-
lips to use foreign corporations and bank accounts to promote
their fraud and hide their ill-gotten millions from the U.S.
Government. A specific example is Cravens’s testimony that
the IBCs and Samoan bank accounts he set up specifically for
Moreland (including the Millennium IBC and bank account)
were set up to allow Zidar and Moreland to operate “privately
and with the utmost secrecy,” with the purpose of keeping
money away from the government. Phillips testified that Zidar
directed her to wire funds from Meliorations to Moreland’s
Millennium account in Samoa in order to keep the money
away from the government. Agent Lawrence testified that
new investor money was sent to Moreland’s various accounts
in the Bahamas, Samoa, and other locations, which money
Moreland used to pay his Dexia and Millennium investors.
Much more evidence was introduced at trial. Given the weight
of the evidence, a rational juror could have found beyond a
reasonable doubt that Moreland participated in the overall
conspiracy to launder money and had knowledge of its objec-
tives.
The evidence also supports the jury’s finding beyond a rea-
sonable doubt that the specific actions underlying the money
laundering counts were committed in furtherance of the
money laundering conspiracy while Moreland was a part of it,
and that the offenses were reasonably foreseeable to More-
land. Regarding the promotion counts, Moreland knew that
16358 UNITED STATES v. MORELAND
sales agents were being paid commissions. In fact, Moreland
himself received commissions from his sales. And the evi-
dence indicates that Moreland knew that the enterprise was
fraudulent. First, he knew it was not profitable and, second,
he knew that funds from later investors were used to pay ear-
lier investors. A rational juror could, therefore, find beyond a
reasonable doubt that it was reasonably foreseeable to More-
land that commissions were being paid to agents in further-
ance of the fraudulent conspiracy. Regarding the concealment
counts, Moreland also knew that Zidar, Cravens, and Phillips
were transferring funds out of the country to hide the funds
from the government. And he knew about the existence and
use of all four foreign bank accounts involved in the transfers.
Thus, a rational juror could find beyond a reasonable doubt
that the particular transactions alleged in Counts 33, 35, and
36 were committed in furtherance of the conspiracy while
Moreland was part of it and were reasonably foreseeable to
Moreland.
[15] There is ample evidence that Moreland participated in
the overarching conspiracy with knowledge of its objectives.
There is also sufficient evidence to conclude that the transac-
tions forming the basis for the substantive charges were com-
mitted in furtherance of the conspiracy while Moreland was
a member of the conspiracy and were reasonably foreseeable
to Moreland. As a result, there is sufficient evidence to uphold
Moreland’s conviction on the substantive money laundering
charges and the conspiracy charge.
III.
Moreland also appeals his revised sentence, arguing that
the district court improperly relied upon facts not found by the
jury in applying the now-advisory Sentencing Guidelines and
that his sentence is unreasonable under 18 U.S.C. § 3553(a).
“When we review a sentence, the first step is to determine if
the district court made a material error in its Guidelines calcu-
lation that serves as the starting point for its sentencing deci-
UNITED STATES v. MORELAND 16359
sion. If there was material error in the Guidelines calculation,
we will remand for resentencing, without reaching the ques-
tion of whether the sentence as a whole is reasonable. If the
district court committed no error in applying the Guidelines,
we will next consider challenges to the reasonableness of the
overall sentence in light of the factors specified in 18 U.S.C.
§ 3553(a).” United States v. Kilby, 443 F.3d 1135, 1140 (9th
Cir. 2006) (citing United States v. Cantrell, 433 F.3d 1269,
1280 (9th Cir. 2006)).
A.
First, Moreland claims that the district court erred in deter-
mining his sentence by relying on facts not found beyond a
reasonable doubt by the jury in applying the Sentencing
Guidelines. More specifically, Moreland objects to the district
court’s reliance on the Sentencing Guidelines calculation set
forth in the Revised Presentence Report. The Revised Presen-
tence Report increased Moreland’s base offense level from 23
to 43 based, in part, on the value of the funds actually laun-
dered in this case after Moreland’s entry into the conspiracy
—$55 million. Moreland complains that the district court vio-
lated his Fifth and Sixth Amendment rights by considering the
amount of funds involved in the money laundering conspiracy
because the government did not charge the amount of funds
laundered in the indictment and the amount was not part of
the jury’s verdict. We review de novo whether a defendant’s
Fifth or Sixth Amendment rights were violated when a district
court relied on facts not found by a jury in determining his
sentence. United States v. Dare, 425 F.3d 634, 638 (9th Cir.
2005). We also review de novo whether the district court
applied the correct standard of proof. Id.Moreland’s argument relies on the Supreme Court’s deci-
sions in Apprendi v. New Jersey, 530 U.S. 466 (2000),
Blakely, and Booker. In Apprendi, the Court held that, as
required by the Sixth Amendment, facts that increase the pen-
alty of a crime beyond the statutory maximum, other than the
16360 UNITED STATES v. MORELAND
fact of a prior conviction, must be submitted to a jury and
proved beyond a reasonable doubt. 530 U.S. at 490; see also
Blakely, 542 U.S. at 303-04 (holding that the “statutory maxi-
mum for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant,” and “without any
additional findings” by the court). But the Court expressly
limited its holding in Apprendi to “any fact that increases the
penalty for a crime beyond the prescribed statutory maxi-
mum.” Id. at 490. In Booker, the Court relied on Apprendi and
Blakely to conclude that the Sixth Amendment precludes a
district court from enhancing a sentence based on extra-
verdict findings in a mandatory sentencing regime. 543 U.S.
at 230-33, 243-44. At the same time, the Court went on to
reaffirm the principle that, “when a trial judge exercises his
discretion to select a specific sentence within a defined range,
the defendant has no right to a jury determination of the facts
that the judge deems relevant.” Id. at 233. The Court reiter-
ated that position recently in Rita v. United States, 127 S. Ct.
2456 (2007), by stating that: “This Court’s Sixth Amendment
cases do not automatically forbid a sentencing court to take
account of factual matters not determined by a jury and to
increase the sentence in consequence. Nor do they prohibit the
sentencing judge from taking account of the Sentencing Com-
mission’s factual findings or recommended sentences.” Id. at
2465-66. Thus, the case law does not support Moreland’s
argument.
[16] In fact, we have specifically rejected Moreland’s argu-
ment that a jury must find facts used to increase a defendant’s
sentence after Booker. In United States v. Dupas, 419 F.3d
916 (9th Cir. 2005), we held that the post-Booker advisory
guidelines regime “still allows the sentencing judge (as dis-
tinct from a jury) to make the findings of fact necessary to
determine the guideline range in the first place.” Id. at 919;
see also United States v. Mix, 457 F.3d 906, 914 (9th Cir.
2006). “[F]ollowing [Booker], district courts should resolve
factual disputes at sentencing by applying the preponderance
UNITED STATES v. MORELAND 16361
of the evidence standard.” Kilby, 443 F.3d at 1140. “As a gen-
eral rule,” therefore, even after Booker, “the preponderance of
the evidence standard is the appropriate standard for factual
findings used for sentencing.” Dare, 425 F.3d at 642. “How-
ever, ‘when a sentencing factor has an extremely dispropor-
tionate effect on the sentence relative to the offense of
conviction,’ the government may have to satisfy a ‘clear and
convincing’ standard.” Id. (quoting United States v. Hopper,
177 F.3d 824, 833 (9th Cir. 1999), quoting United States v.
Restrepo, 946 F.2d 654, 659 (9th Cir. 1999) (en banc)).
[17] In calculating Moreland’s offense level at 43 as rec-
ommended in the Revised Presentence Report, the district
court found that the value of the funds laundered after More-
land’s entry into the scheme was $55 million, that Moreland
played a leadership and organizing role in the offense, that he
abused a position of trust with respect to the investors, and
that he obstructed justice by destroying documents, attempt-
ing to dispose of his laptop computer, and fleeing to Costa
Rica during the investigation. The court found these facts by
clear and convincing evidence, thus applying a burden of
proof higher than necessary. There was no error in calculating
the offense level or the applicable Guidelines range.
[18] As to Moreland’s Fifth and Sixth Amendment claims,
Moreland’s sentence did not exceed the statutory maximums
for the charges on which he was convicted. Thus, Apprendi is
not implicated here. We held in Dare, 425 F.3d at 640 that
“[t]he judge may select any sentence within the range, based
on facts not alleged in the indictment or proved to the jury—
even if those facts are specified by the legislature, and even
if they persuade the judge to choose a much higher sentence
than he or she otherwise would have imposed. That a fact
affects the defendant’s sentence, even dramatically so, does
not by itself make it an element.” The statutory maximums for
the counts on which he was convicted by the jury are: 5 years
for each of the three counts of mail fraud, 5 years for each of
the three counts of wire fraud, 20 years for each of the two
16362 UNITED STATES v. MORELAND
counts of promotion money laundering, 20 years for each of
the four counts of money laundering involving foreign trans-
fers, 5 years for conspiracy to commit mail and wire fraud,
and 20 years for conspiracy to commit money laundering. If
the district court sentenced Moreland to the maximum for
each count and ran the sentences concurrently, he could have
received 20 years in prison. If the district court had chosen to
run the sentences consecutively pursuant to U.S.S.G. § 5G1.2,
he could have received a sentence of 175 years in prison. But
the district court sentenced him to 18 years in prison—well
within the applicable statutory maximums. Furthermore, the
district court found the facts replied upon in the Revised Pre-
sentence Report by clear and convincing evidence. Therefore,
the district court did not err in determining Moreland’s sen-
tence.
B.
Second, Moreland argues that the revised sentence is unrea-
sonable under 18 U.S.C. § 3553(a). Moreland previously
appealed his original sentence and, in light of the Supreme
Court’s decision in Blakely, a prior panel of this court
remanded for resentencing under the now-advisory Sentenc-
ing Guidelines. On remand, the district court departed down-
ward from the Sentencing Guidelines range recommended in
the government’s Revised Presentence Report and reduced
Moreland’s sentence from 292 months to 216 months in
prison. Moreland now argues that the 216-month sentence is
unreasonable because he was a first-time offender of a nonvi-
olent offense, he was not as responsible for the criminal enter-
prise as his co-conspirators who pled guilty and received
much lower sentences, and the district court improperly con-
sidered the amount of money involved in the conspiracy.
The district court explicitly considered the nature and cir-
cumstances of the offense, the seriousness of the offense, and
the need to promote respect for the law, provide just punish-
UNITED STATES v. MORELAND 16363
ment, afford adequate deterrence, and protect the public. See
18 U.S.C. § 3553(a).5
The district court also gave substantial and detailed consid-
eration to Moreland’s objections. First, the court explicitly
considered Moreland’s comparative culpability and that he
was a first-time offender of a nonviolent crime. The district
court further found that Moreland’s co-conspirators deserved
their lower sentences due to their assistance to the govern-
ment in putting together its case against Zidar and Moreland.
For that reason, the district court found that Moreland’s lon-
ger sentence was appropriate. The district court also explicitly
considered the notion that the amount of money involved in
the money laundering scheme increased Moreland’s sentenc-
ing range. Finally, the district court noted an obvious
“change” in Moreland’s attitude toward the crime and
acknowledgment of it that justified a downward departure.
Namely, the court found that the two years in between the
first sentencing and the resentencing had produced a “differ-
ent person” who had had time to “introspect” on the “harsh
5
Under § 3553(a), a district court “shall impose” a sentence that is “suf-
ficient, but not greater than necessary.” 18 U.S.C. § 3553(a). In doing so,
the district court “shall consider”:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct; [and]
(C) to protect the public from further crimes of the defen-
dant;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
16364 UNITED STATES v. MORELAND
circumstances and . . . disastrous results” of his crimes and
time in prison. Consequently, the district court exercised its
discretion to lower Moreland’s sentence from 24 to 18 years
in prison, a sentence the court judged was sufficient, but not
greater than necessary, to serve its purpose.
The district court’s explanation of its reasoning was more
than legally sufficient. “The sentencing judge should set forth
enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising
his own legal decisionmaking authority.” Rita, 127 S. Ct. at
2468. As in Rita, “[t]he record makes clear that the sentencing
judge listened to each argument. The judge considered the
supporting evidence. The judge was fully aware of defen-
dant’s . . . ailments and imposed a sentence that takes them
into account. Id.[19] Given the seriousness of the crimes, the number of
victims, the amount of loss, and Moreland’s role in the con-
spiracy, the district court’s decision to accept the Sentencing
Guidelines range presented in the Revised Presentence Report
was reasonable. The district court’s decision not to depart
downward given the disparity between Moreland’s sentence
and those of some of his co-conspirators was also reasonable.
See United States v. Caperna, 251 F.3d 827, 831-32 (9th Cir.
2001) (leaving that decision to the discretion of the sentencing
judge) a case involving the prosecution of a police officer for
unreasonable use of force. Finally, the district court’s decision
to depart downward to 216 months, but not more, in consider-
ation of the § 3553(a) factors, and in particular, Moreland’s
mental state, was reasonable. As a result, Moreland’s sentence
was reasonable under § 3553(a).
IV.
Finally, Moreland appeals the district court’s order impos-
ing over $36 million in restitution. The legality of a restitution
order is reviewed de novo, unless it is within the statutory
UNITED STATES v. MORELAND 16365
bounds, in which case we review for abuse of discretion.
United States v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004).
Congress passed the Mandatory Victims Restitution Act of
1996 (MVRA), 18 U.S.C. §§ 3663A-3664, as part of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub.L. No. 104-132, § 206, 110 Stat. 1232 (1996),
and as a supplement to the Victim and Witness Protection Act
of 1982 (VWPA), 18 U.S.C. § 3663. United States v. De La
Fuente, 353 F.3d 766, 769 (9th Cir. 2003). The MVRA makes
restitution mandatory, without regard to a defendant’s eco-
nomic situation, to identifiable victims who have suffered
physical injury or pecuniary loss from particular crimes,
including offenses involving fraud or deceit. 18 U.S.C.
§ 3663A(a)(1), (c), § 3664(f)(1)(A); United States v. Mays,
430 F.3d 963, 965 (9th Cir. 2005); United States v. Gordon,
393 F.3d 1044, 1048 (9th Cir. 2004); and United States v.
Dubose, 146 F.3d 1141, 1143 (9th Cir. 1998). The “primary
and overarching goal” of the MVRA “is to make victims of
crime whole, to fully compensate these victims for their losses
and to restore these victims to their original state of well-
being.” Gordon, 393 F.3d at 1053 (internal quotations, cita-
tions, and emphasis omitted). For that reason, the statute “ex-
pressly directs the sentencing judge to award restitution in an
amount equal to the value of the property on the date of the
damage, loss, or destruction.” Id. (internal quotation omitted).
As such, the MVRA seeks “to restore the defrauded party to
the position he would have had absent the fraud.” Id. (internal
quotation omitted).
[20] The procedures for identifying victims and the losses
they sustained as a result of a defendant’s criminal conduct
are set forth in § 3664. The statute directs the sentencing court
to order a probation officer to prepare a report providing “a
complete accounting of the losses to each victim.” 18 U.S.C.
§ 3664(a). To facilitate the preparation of this report,
§ 3664(d)(1) provides for the prosecutor, upon request of the
probation officer, to consult with victims and, not later than
16366 UNITED STATES v. MORELAND
60 days before the sentencing date, to detail any losses subject
to restitution. Id. § 3664(d)(1). Section 3664(d)(2) further pro-
vides that the probation officer, prior to submitting a report to
the court, shall, to the extent practicable, provide notice of the
court proceedings to all victims and afford them the opportu-
nity to submit an affidavit detailing any losses subject to resti-
tution. Id. § 3664(d)(2). “If the number or identity of victims
cannot be reasonably ascertained, or other circumstances exist
that make [preparing the report] clearly impracticable, the
probation officer shall so inform the court.” Id. § 3664(a).
Where victims’ losses are not ascertainable by a date 10 days
prior to sentencing, the prosecutor or the probation officer
shall inform the court, and “the court shall set a date for the
final determination of the victim’s losses, not to exceed 90
days after sentencing.” Id. § 3664(d)(5). If a victim thereafter
discovers losses that could not reasonably have been included
in his or her initial claim for restitution, that victim may,
within 60 days of discovering the loss, petition the court for
an amended restitution order. Id.
In this case, the district court ordered restitution of approxi-
mately $36 million well after the 90-day limit had elapsed. At
the time of Moreland’s original sentencing, on August 23,
2003, and at the request of the prosecution, the district court
deferred the issue of restitution pending a determination by a
receiver of the identities of victims and the amounts of their
losses. The receiver did not complete its determination until
March 2005. By that time, Moreland had appealed his original
sentence and a prior panel of this court had already remanded
for resentencing. On remand, the district court entered a resti-
tution order for over $36 million. That order was issued over
two years after the original sentencing took place. Moreland
argues that the district court lacked jurisdiction to order resti-
tution on remand because it failed to do so within the 90-day
time frame set forth in § 3664(d)(5). We disagree. Moreland’s
timing argument would abrogate an obligation to pay millions
of dollars in restitution to thousands of defrauded victims.
UNITED STATES v. MORELAND 16367
Such an outcome would be antithetical to the purpose of the
MVRA.
[21] The “intended beneficiaries” of the MVRA’s proce-
dural mechanisms “are the victims, not the victimizers.”
United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999).
The legislative history reveals Congress’s intent that the time
limits in § 3664 not be relied upon for protection by defen-
dants. See United States v. Cheal, 389 F.3d 35, 49 (1st Cir.
2004). In its report on the bill that would become the MVRA,
the Senate Judiciary Committee explicitly refused to relate the
statute’s procedural framework to the interest of defendants,
stating that the “sole due process interest of the defendant
being protected during the sentencing phase is the right not to
be sentenced on the basis of invalid premises or inaccurate
information.” S. Rep. No. 104-179, at 18 (1995), as reprinted
in 1996 U.S.C.C.A.N. 924, 930, quoted in Cheal, 389 F.3d at
49. Consequently, we recognized in United States v. Cienfue-
gos, 462 F.3d 1160 (9th Cir. 2006), that “ ‘the purpose behind
the statutory ninety-day limit on the determination of victims’
losses is not to protect defendants from drawn-out sentencing
proceedings or to establish finality; rather, it is to protect
crime victims from the willful dissipation of defendants’
assets.’ ” Id. at 1163 (quoting United States v. Zakhary, 357
F.3d 186, 191 (2d Cir. 2004)).
[22] Addressing two of the other timing requirements in
§ 3664 (the 10-day notice rule in § 3664(d)(5), and the 60-day
requirement in § 3664(d)(1) regarding the amount of loss cal-
culation), we held that § 3664’s timing requirements are pro-
cedural, rather than jurisdictional. United States v.
Cienfuegos, 462 F.3d 1160, 1162-63 (9th Cir. 2006). We con-
cluded that the government’s failure to comply with both of
those requirements was subject to harmless error review. Id.This conclusion puts us in sync with the First, Second, Fourth,
Sixth, and Seventh Circuits, which have held that § 3664’s
requirements are not jurisdictional. See United States v.
Cheal, 389 F.3d 35, 49-50 (1st Cir. 2004); United States v.
16368 UNITED STATES v. MORELAND
Zakhary, 357 F.3d 186, 191 (2d Cir. 2004); United States v.
Vandeberg, 201 F.3d 805, 814 (6th Cir. 2000); United States
v. Johnson, 400 F.3d 187, 199 (5th Cir. 2005); and United
States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999).6
In fact, Moreland’s “jurisdictional argument is undermined
by § 3664’s provision for continued revision of the restitution
order in light of later discoveries of losses.” Cheal, 389 F.3d
at 48. “The MVRA permits amendments to restitution order
to reflect changed circumstances, and neither confers nor ter-
minates the court’s jurisdiction.” Vandeberg, 201 F.3d at 814.
If a district court’s jurisdiction to order restitution did termi-
nate after 90 days, the time limitation would “effectively nul-
lify[ ]” the provision allowing for consideration of later-
discovered losses. Id. Furthermore, the title of the provision
itself—“Procedure for issuance and enforcement of order of
restitution”—“advertises its procedural nature” and refutes the
notion that § 3664(d)(5) is jurisdictional. Cheal, 389 F.3d at
48.
The legislative history also supports the notion that the “in-
tended beneficiaries” of the MVRA’s procedural mechanisms
“are the victims, not the victimizers.” Grimes, 173 F.3d at
639. The legislative history reveals Congress’s intent that the
time limits in § 3664 not be relied upon for protection of
defendants. See Cheal, 389 F.3d at 49. In its report on the bill
that would become the MVRA, the Senate Judiciary Commit-
tee explicitly refused to relate the statute’s procedural frame-
work to the interest of the defendants, stating that the “sole
due process interest of the defendant being protected during
the sentencing phase is the right not to be sentenced on the
6
But see United States v. Farr, 419 F.3d 621, 623 (7th Cir. 2005) (dis-
tinguishing Grimes and holding that the district court exceeded its author-
ity under § 3664 to issue restitution because it did not do so within the 90-
day time limit, where it did not order restitution as part of the defendant’s
original sentence, but three years later added restitution as a condition of
defendant’s supervised release).
UNITED STATES v. MORELAND 16369
basis of invalid premises or inaccurate information.” S. Rep.
No. 104-179 at 18 (1995), reprinted in 1996 U.S.C.C.A.N.
924, 930, quoted in Cheal, 389 F.3d at 49. Consequently, we
recognized in Cienfuegos that “ ‘the purpose behind the statu-
tory ninety-day limit on the determination of victims’ losses
is not to protect defendants from drawn-out sentencing pro-
ceedings or to establish finality; rather, it is to protect crime
victims from the willful dissipation of defendants’ assets.’ ”
462 F.3d 1163 (quoting Zakhary, 357 F.3d at 191).
[23] For that reason, in Cienfuegos, we concluded that “be-
cause the procedural requirements of section 3664 were
designed to protect victims, not defendants, the failure to
comply with them is harmless error absent actual prejudice to
the defendant.” 462 F.3d at 1163; see also Zakhary, 357 F.3d
at 188 (“[F]ailure to determine losses within the § 3664(d)(5)
time period will be deemed harmless error unless a defendant
can show actual prejudice from the delay . . . . [A] presump-
tion of harmlessness applies to any error in the timely identifi-
cation of victims’ losses.”). Here, Moreland “cites no
prejudice from the delay in entering the restitution order.”
Cheal, 389 F.3d at 48. For example, Moreland does not claim
that any documents or witnesses had become unavailable after
the 90-day period elapsed, or that his financial status changed.
See United States v. Stevens, 211 F.3d 1, 6 (2d Cir. 2000).
Indeed, Moreland does not even allege that the delay caused
any prejudice to his defense whatsoever. See id. at 6. In Cien-
fuegos, we held that the defendant failed to show prejudice,
in part, because he had “the functional equivalent of notice”
under § 3664(d)(5)’s requirements, since restitution was part
of his plea agreement. 462 F.3d at 1163. Likewise, here,
Moreland was aware that an order of restitution would be part
of his sentence, as the district judge noted it on the record dur-
ing the original sentencing hearing but deferred the calcula-
tion of the amount and identification of the victims at the
prosecution’s request. Thus, Moreland also had notice that the
restitution order would later be imposed. Finally, Moreland
was aware of the large amount of funds at issue based on the
16370 UNITED STATES v. MORELAND
district court’s findings to support the sentencing calculation.
Therefore, the district court’s error in failing to comply with
the 90-day time limit was harmless. See id.
[24] Finally, the prosecution did not waive its right to seek
restitution, as Moreland suggests. As an initial matter, restitu-
tion under the MVRA is not a right to be sought or waived by
a prosecutor. Rather, as the name of the statute suggests, resti-
tution is mandatory where the MVRA applies. Even so, in this
case, the prosecution requested restitution in its original sen-
tencing memorandum to the district court. At the prosecu-
tion’s request, the court deferred ordering restitution until the
receiver finished its report on victims’ losses. Moreland’s
waiver argument is therefore undermined by both the record
and the mandatory nature of the statute.
V.
We conclude that none of the claims raised in Moreland’s
appeal warrants reversal.
AFFIRMED.