United States v. Mark Gelazela ( 2019 )

FILED
NOT FOR PUBLICATION
SEP 20 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50366
Plaintiff-Appellee, D.C. No.
8:15-cr-00080-DOC-3
v.
MARK ALAN GELAZELA, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-50006
Plaintiff-Appellee, D.C. No.
8:15-cr-00080-DOC-3
v.
MARK GELAZELA, AKA Mark Alan
Galezela, AKA Mark Gelazel, AKA Mark
A. Gelazela, AKA Mark Alan Gelazela,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted September 11, 2019
Pasadena, California
Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.
Appellant Mark Gelazela (Gelazela) appeals his convictions for wire fraud
premised on a scheme to defraud investors in bank guarantees.
The district court correctly denied Gelazela’s motion to dismiss the
indictment as time-barred because the indictment alleged that part of the scheme to
defraud was lulling the victims, and held that the indictment was filed within the
five-year statute of limitations based on lulling communications to the victims that
were part of the scheme to defraud. See United States v. Lane, 474 U.S. 438, 451-
52 (1986) (explaining that “[m]ailings occurring after receipt of the goods obtained
by fraud are within the statute if they were designed to lull the victims into a false
sense of security, postpone their ultimate complaint to the authorities, and therefore
make the apprehension of the defendants less likely than if no mailings had taken
place”) (citations and internal quotation marks omitted); see also United States v.
Tanke, 743 F.3d 1296, 1305 (9th Cir. 2014) (articulating that “[a]llowance must be
made for the reality that embezzlements and other schemes to defraud are often
open-ended, opportunistic enterprises. They may evolve over time, contemplate no
fixed end date or adapt to changed circumstances.”) (citations, alterations, and
2
internal quotation marks omitted). Because the lulling communications were wires
in furtherance of the scheme, the continuing offense doctrine was not applicable.
See United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991), overruled on other
grounds by United States v. Scarano, 76 F.3d 1471, 1477 (9th Cir. 1996).
The district court properly instructed the jury concerning the requisite
elements for wire fraud, and that the jury was required to determine that the lulling
communications were part of the scheme to defraud. See Tanke, 743 F.3d at 1305
(holding that “mailings designed to avoid detection or responsibility for a
fraudulent scheme fall within the mail fraud statute when they are sent before the
scheme is completed. To determine when a scheme ends, we look to the scope of
the scheme as devised by the perpetrator”).1 The district court also adequately
responded to the jury’s question regarding the materiality of the lulling
communications because the instruction on materiality was not ambiguous. See id.
AFFIRMED.
1
“It is well settled that cases construing the mail fraud and wire fraud
statutes are applicable to either.” Tanke, 743 F.3d at 1303 n.3 (citation omitted).
3