United States v. Welton Kalani ( 2013 )

FILED
NOT FOR PUBLICATION JUN 14 2013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. 12-10285
Plaintiff - Appellee, D.C. No. 1:09-CR-00179-LEK-1
v.
MEMORANDUM *
WELTON KALANI,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted June 11, 2013 **
Honolulu, Hawaii
Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.
Welton Kalani appeals his conviction for conspiracy, the district court’s
calculation of sentencing loss, and the district court’s restitution award. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Sufficient evidence at trial supported Kalani’s conviction of a single
conspiracy. See United States v. Duran, 189 F.3d 1071, 1078 (9th Cir. 1999).
Based on this evidence, a rational trier of fact could have found an overall
agreement existed between Kalani and his co-conspirators to sell properties to
straw buyers to divert equity from the homeowners. See id. at 1079–80. The
method of preparing the loan applications and falsely verifying the loan applicants’
overstated incomes remained consistent throughout the three transactions and
involved the same key players. See United States v. Fernandez, 388 F.3d 1199,
1227 (9th Cir. 2004). Moreover, the co-conspirators “knew, or had reason to know
. . . that [their] benefits were probably dependent upon the success of the entire
operation,” United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir. 1977), since
each part of the loan application process had to be completed successfully for the
mortgage to be approved. Even if a variance existed between the conspiracy
charged and proved, Kalani fails to demonstrate how this resulted in substantial
prejudice requiring reversal. See Kotteakos v. United States, 328 U.S. 750, 752
(1946).
The district court properly calculated sentencing loss based on the amount of
the outstanding loan balances less the actual sales proceeds. See United States v.
Yeung, 672 F.3d 594, 604 (9th Cir. 2012).
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The district court also correctly calculated the restitution award as to the
Waipono property based on the formula in Yeung. See id. at 601–02. The district
court’s designation of the victim as “PNC Financial Services, . . . , and or any other
financial institution that had the legal right to the property in question,” took into
account the evidence Kalani submitted at sentencing suggesting that PNC sold the
Waipono mortgage to HSBC, and was within the district court’s flexibility in
drafting its restitution award. See id. at 602. Because the district court explained
its reasoning and based its award on “an adequate evidentiary basis,” remand is not
appropriate. See id. at 602, 604–05.
AFFIRMED.
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