United States v. Lisa Lievanos , 422 F. App'x 603 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 17 2011
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. 09-50543
Plaintiff - Appellee, D.C. No. 2:08-cr-00746-FMC-4
v.
MEMORANDUM *
LISA LIEVANOS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Argued and Submitted February 8, 2011
Pasadena, California
Before: KOZINSKI, Chief Judge, HAWKINS and FISHER, Circuit Judges.
Lievanos appeals multiple convictions and the sentence resulting from her
participation in a loan fraud conspiracy that submitted false loan applications to
subprime lenders in order to buy various properties.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
1. Batson claims: The prosecutor gave race-neutral reasons for exercising
peremptory challenges to dismiss three African-American jurors. See Batson v.
Kentucky, 476 U.S. 79, 98 (1986); see also Purkett v. Elem, 514 U.S. 765, 768
(1995) (per curiam). Specifically, G. admitted that her religious beliefs would
affect her ability to sit in judgment of Lievanos. W. agreed with the district court
that his family’s negative experiences with subprime lenders created “emotional
issues with this whole business of subprime lending.” L. wasn’t candid about his
previous work for a subprime lender.
The district court’s finding that the dismissals weren’t the result of
purposeful racial discrimination is supported by the record. See Snyder v.
Louisiana, 552 U.S. 472, 477 (2008). The prosecutor dismissed for cause a non-
minority juror who shared G.’s religious scruples. See Ali v. Hickman, 584 F.3d
1174, 1192–93 (9th Cir. 2009) (performing a comparative analysis to determine
whether minority juror’s religious belief was a pretext for purposeful
discrimination). And ample evidence supports the prosecutor’s reasons for
dismissing W. and L.
2. Suppression motion: The record also supports the district court’s finding
that Lievanos’s statements to the FBI were voluntary. See United States v. Heller,
page 3
551 F.3d 1108, 1112 (9th Cir. 2009). The agents interviewed Lievanos in her
home; they didn’t coerce her or take any other steps that would have made the
interviews custodial. See United States v. Crawford, 372 F.3d 1048, 1060–61 (9th
Cir. 2004) (en banc); United States v. Haswood, 350 F.3d 1024, 1028 (9th Cir.
2003) (noting that coercion typically requires “outrageous conduct”). Their
observation that Lievanos could go to jail wasn’t a threat because she wasn’t about
to be arrested. Cf. United States v. Patayan Soriano, 361 F.3d 494, 502–03 (9th
Cir. 2004). That the agents’ stated reason for interviewing Lievanos was pretextual
didn’t render her statements involuntary. See Crawford, 372 F.3d at 1060–61
(“Trickery [and] deceit . . . do not render a [statement] inadmissible, certainly in
noncustodial situations . . . .” (internal quotation mark omitted)).
3. Sufficiency of the evidence: Because Lievanos didn’t renew her Rule 29
motion at the close of evidence, we review this claim “only to prevent a manifest
miscarriage of justice, or for plain error.” United States v. Alvarez-Valenzuela,
231 F.3d 1198, 1201 (9th Cir. 2000). The government introduced extensive
evidence that Lievanos was a willing participant in the loan fraud conspiracy and
lied to the FBI about the $20,000 check. Based on this evidence, a rational fact-
page 4
finder could find Lievanos guilty of all charges against her. See United States v.
Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc).
The jury’s acquittal of Lievanos on wire fraud in connection with one of the
loans doesn’t require the reversal of her conviction for laundering the proceeds of
that loan. Wire fraud requires “specific intent to defraud.” United States v.
McNeil, 320 F.3d 1034, 1040 (9th Cir. 2003); see also 18 U.S.C. § 1343. Money
laundering doesn’t, so there’s no inconsistency between the verdicts. See 18
U.S.C. § 1957(a). Lievanos’s claim that her false statements were lawful
“exculpatory no[s]” must fail because there’s no such thing. See Brogan v. United
States, 522 U.S. 398, 401, 408 (1998).
4. Restitution and sentencing: The district court didn’t abuse its discretion
when it ordered Lievanos, in light of her participation in the loan fraud conspiracy,
to pay restitution for the entire loss on one of the loans. See United States v.
Brock-Davis, 504 F.3d 991, 999 (9th Cir. 2007) (“[W]hen the crime of conviction
includes . . . conspiracy . . . the restitution order [may] include acts of related
conduct for which the defendant was not convicted.” (emphasis and internal
quotation marks omitted)); United States v. Lawrence, 189 F.3d 838, 846–47 (9th
Cir. 1999). The jury’s acquittal of Lievanos on one wire fraud charge doesn’t
page 5
render the restitution order an abuse of discretion. See United States v. Booth, 309
F.3d 566, 571, 575–76 (9th Cir. 2002) (affirming restitution order for entire loss
caused by scheme to defraud when jury convicted on some fraud charges and
acquitted on others).
Lievanos conceded the substantive reasonableness of her prison sentence at
the start of oral argument.
AFFIRMED.