United States v. Horn ( 2013 )

FILED
NOT FOR PUBLICATION MAR 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50142
Plaintiff - Appellee, D.C. No. 2:11-cr-00075-PA-1
and
MEMORANDUM *
FEDERAL INSURANCE COMPANY,
Movant - Appellee,
v.
GERSON S. HORN,
Movant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted February 13, 2013
Pasadena, California
*
This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
page 2
Before: KOZINSKI, Chief Judge, SILVERMAN, Circuit Judge, and
RAKOFF, Senior District Judge.**
Appellant Gerson S. Horn’s claims of error all depend on his assertion that
the bond money belonged to him. The district court found that it belonged to
Horn’s client, David Hamedany: “[T]he $89,530.34 posted for [Hamedany’s]
bond . . . is directly traceable to the liquidation of his 401(k) account . . . .” We
review this finding for clear error, Momot v. Mastro, 652 F.3d 982, 986 (9th Cir.
2011), and find none.
The magistrate judge ordered Hamedany’s bond to be “collateralized by the
proceeds in defendant’s 401(k) account.” The order specified that “[t]he equity in
the account shall be liquidated. The proceeds of the account shall be withdrawn
and posted as cash collateral with the Clerk, unless . . . defendant and the United
States submit a joint stipulation that the proceeds of the account may remain in the
account subject to the right of the government to withdraw them.” The record
indicates the order was complied with. The money from Hamedany’s 401(k) went
into a client trust account managed by Horn, and Horn wrote a check for the bond,
drawn on that trust account. The bond order didn’t mention the possibility that
**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
page 3
Horn would post the bond on behalf of his client. Nor do the Central District of
California’s Local Rules permit an attorney “appearing in the case” to post bond
for his client. C.D. Cal. R. 65-9. This all supports the district court’s finding that
the bond money came from Hamedany, not Horn.
For his part, Horn points to an “Affidavit by Owner of Cash Security,”
where he asserted that the bond money “is owned by me.” But the government
denies that it had a chance to see and contest the affidavit, and the district court
noted that the affidavit “does not appear on the Court’s docket.” Further, the
affidavit indicated that the money came from Horn’s “client trust acc[oun]t.”
The district court made its factual finding after considering Horn’s affidavit,
alongside the other evidence in the record. We see no error, clear or otherwise.
Because the money didn’t belong to Horn, we don’t reach the rest of his claims of
error.
AFFIRMED.