United States v. James Kalfsbeek , 470 F. App'x 656 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 05 2012
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. 10-10139
Plaintiff - Appellee, D.C. No. 2:05-cr-00128-LKK-1
v.
MEMORANDUM *
JAMES KALFSBEEK,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-10189
Plaintiff - Appellee, D.C. No. 2:05-cr-00128-LKK-8
v.
DONNA ROWE,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted February 14, 2012
San Francisco, California
Before: B. FLETCHER, NOONAN, and PAEZ, Circuit Judges.
James Kalfsbeek appeals his conviction, after a jury trial, of four counts of
money laundering; Donna Rowe appeals her conviction, after a jury trial, of three
counts of money laundering and one count of conspiracy. Kalfsbeek and Rowe
bring several challenges to the sufficiency of the evidence to support the jury’s
verdicts; Kalfsbeek argues that the district court erred under Federal Rule of
Criminal Procedure 32 during the sentencing hearing; and Kalfsbeek and Rowe
appeal the district court’s denial of their Federal Rules of Criminal Procedure 29
and 33 motions based on the sufficiency of evidence.
We review de novo the sufficiency of evidence, first viewing the evidence in
the light most favorable to the prosecution and resolving any competing inferences
accordingly. We then determine whether the evidence, so viewed, is sufficient to
allow “any rational trier of fact [to find] the essential elements of the crime beyond
a reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010)
(en banc) (internal citation omitted).
Kalfsbeek argues that the evidence is insufficient to prove that the relevant
funds were derived from criminal activity. The government presented evidence
2
that Puget’s Sound Agricultural Society, Ltd. (“PSASL”) existed only to conduct
an illegal insurance scheme; it argued at trial that any mentions within PSASL
materials of other services and products were prospective and speculative only.
Defendants did not present evidence. Under Nevils, we resolve conflicting
inferences in favor of the prosecution. We hold that the evidence was therefore
sufficient to allow a jury to conclude beyond a reasonable doubt that the relevant
proceeds derived from criminal activity.
Kalfsbeek and Rowe argue that the evidence is insufficient to prove that the
funds at issue were “profits” of the illicit scheme. But the government is under no
obligation to prove that the funds at issue were “profits”; it need only provide
evidence sufficient to support the jury’s finding that the funds were “receipts” of
the scheme, and it did so. See United States v. Wilkes, 662 F.3d 524, 549 (9th Cir.
2011) (holding that under United States v. Santos, “proceeds” means “gross
receipts” “except where the money transfers are ‘inherent in the scheme’”); see
also United States v. Santos, 553 U.S. 507, 515 (2008) (discussing the “merger
problem” that would result if “proceeds” were deemed to be all “receipts”).
The money transfers were “receipts” of the scheme, and were not inherent to
it. One of Kalfsbeek’s money laundering counts is based on PSASL’s transfer of
$150,000 to a Canadian bank account after the Michigan default judgment against
3
PSASL was filed in the Northern District of California. The three remaining
money laundering counts, which are the same for both defendants, are based on
three checks written to co-conspirators after PSASL declared that it was shutting
down. We hold that these money transfers were therefore not inherent to the
scheme and, under Wilkes, the government is not required to show that the funds
were “profits” of the scheme.
Rowe argues that the evidence is insufficient to prove that she engaged in
conduct that was designed to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds of specified unlawful activity.
The government presented evidence that Rowe knew about the default judgment
before she wrote the checks that form the factual basis for the money-laundering
counts; she cooperated with others to set in motion a plan to transfer the funds
from the Canadian account, though PSASL was under a court order to convey the
funds to law enforcement authorities; she knew that the funds were passed through
two trusts unrelated to PSASL; and she caused three checks to be written that drew
on the account containing the illicit funds. Under Nevils, we conclude that the
evidence is sufficient to support the jury’s finding that Rowe engaged in conduct
designed to conceal or disguise key attributes of the receipts of the scheme.
4
For the same reasons, we conclude that the government presented evidence
sufficient to support the jury’s verdict that Rowe joined a scheme to defraud and is
therefore guilty of conspiracy.
Kalfsbeek argues that the district court committed procedural error under
Federal Rule of Criminal Procedure 32 by failing to determine whether Kalfsbeek
had reviewed the presentence report and discussed it with counsel. We need not
decide the issue, because any such error was harmless. See United States v.
Soltero, 510 F.3d 858, 863-864 (9th Cir. 2007). Kalfsbeek submitted objections to
the presentence report, indicating that he had reviewed it, and in his briefing he
does not allege that any harm ensued from the error. We hold, under Soltero, that
any Rule 32 error was harmless and does not warrant resentencing.
Kalfsbeek argues that the district court committed procedural error by failing
to resolve factual disputes at the sentencing hearing. On appeal, he points to his
first and fifth objections. The district court found that Kalfsbeek was not
motivated by greed, a finding directly relevant to Kalfsbeek’s first objection. With
regard to Kalfsbeek’s fifth objection relating to the enhancement for sophisticated
means, the district court stated that it did not agree that the means were not
sophisticated; it then specifically adopted the presentence report’s relevant
findings. Moreover, the court found that ruling on the objections was unnecessary
5
because it had already decided to make a substantial downward departure. We
therefore hold that the district court did not violate Rule 32 and we affirm
Kalfsbeek’s sentence.
Kalfsbeek and Rowe both made Federal Rule of Criminal Procedure 29
motions, which were denied, and they joined in a Federal Rule of Criminal
Procedure 33 motion for a new trial, which was also denied. We affirm the district
court’s denial of the Rule 29 motions, which we review on the same standard as the
sufficiency of evidence, supra. See United States v. Gonzalez-Diaz, 630 F.3d
1239, 1242 (9th Cir. 2011).
We review a district court’s denial of a motion for a new trial for abuse of
discretion, so long as the alleged error is not a Brady violation. See United States
v. Price, 566 F.3d 900, 907 (9th Cir. 2009); United States v. Mack, 362 F.3d 597,
600 (9th Cir. 2004).
Kalfsbeek and Rowe moved for a new trial based on the government’s
alleged failure to show that the funds at issue were “profits” of illicit activity, as
they argued was required by Santos, 553 U.S. at 514. Because we hold that the
evidence was sufficient to support the convictions, we likewise hold that the
district court did not abuse its discretion in denying the defendants’ joint motion
for a new trial.
6
AFFIRMED.
7