United States v. Kendrick Green , 648 F. App'x 663 ( 2016 )

FILED
NOT FOR PUBLICATION
APR 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50003
Plaintiff - Appellee, DC No. 3:12 cr-1278 BTM-6
v.
MEMORANDUM*
KENDRICK GREEN,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, District Judge, Presiding
Argued and Submitted April 6, 2016
Pasadena, California
Before: TASHIMA, SILVERMAN, and GRABER, Circuit Judges.
Kendrick Green appeals from his conviction for conspiracy to commit mail
and/or wire fraud, mail fraud, wire fraud, and conspiracy to launder monetary
instruments. He also appeals his 36-month sentence of imprisonment. We have
jurisdiction under 18 U.S.C. § 3742(a) and 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.
1. Green argues that the district court erred by denying his motion to
suppress his statements and affidavit from an interview at the U.S. Attorney’s
Office. He contends that the government served him with a grand jury subpoena as
a ruse to coerce him into making incriminating statements, although it never
intended to call him before the grand jury.
We review de novo the voluntariness of a confession and for clear error the
district court’s factual findings underlying its determination of voluntariness.
United States v. Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002). A confession that,
under the totality of the surrounding circumstances, was involuntarily given must
be suppressed. Doody v. Ryan, 649 F.3d 986, 1008 (9th Cir. 2011) (en banc).
Here, the district court did not clearly err in finding that the government did not
employ any coercive or threatening acts to procure Green’s statements. To the
contrary, the record demonstrates that Green voluntarily made his statements after
the government disclosed to Green that he was a target of the investigation and
advised him of his rights. Green was also permitted to review and edit his
affidavit; moreover, he was not in custody. We find no error in the district court’s
denial of Green’s suppression motion.
2. Next, Green argues that the district court erred by instructing the jury
on a co-schemer theory of liability, in addition to instructing it on Pinkerton
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liability. An instruction, even if erroneous, is subject to harmless error review. See
United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1197 (9th Cir. 2000) (en banc).
An error is harmless if it is clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error. Id.Here, even assuming the court erred in giving the co-schemer instruction, we
conclude that the error was harmless. At worst, the co-schemer instruction was
duplicative of the Pinkerton instruction: had the jury relied on the co-schemer
instruction to convict Green of the mail and wire frauds perpetrated by his co-
schemers, it would have also necessarily found liability under Pinkerton. Green
does not challenge the Pinkerton instruction, and the jury was properly instructed
on the government’s burden of proof. Moreover, the evidence that Green was
liable for mail and wire fraud as a principal was overwhelming. Because it is clear
beyond a reasonable doubt that a rational jury would have found Green guilty of
mail and wire fraud even without the co-schemer instruction, any error was
harmless.1
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We reject Green’s contention that the jury may have relied improperly
on the co-schemer instruction to find him guilty of the conspiracy counts. Juries
are presumed to “follow instructions given to them throughout the course of the
trial.” United States v. Padilla, 639 F.3d 892, 897 (9th Cir. 2011). Because the co-
schemer instruction expressly excluded the conspiracy charges against Green, we
presume that the jury abided by such limitation.
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3. Green argues that his mail fraud conviction must be reversed due to
insufficient evidence that he caused the mails to be used in executing a scheme to
defraud. See United States v. Lo, 231 F.3d 471, 475 (9th Cir. 2000).
“There is sufficient evidence to support a conviction if, viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000). “[I]f the
government shows that a defendant knows or can reasonably foresee that use of the
mails will follow in the ordinary course of business, ‘then he causes the mails to be
used.’” United States v. Serang, 156 F.3d 910, 914 (9th Cir. 1998) (citation
omitted). We conclude that there was sufficient evidence to support the mail fraud
conviction based on the mailing of the Deed of Trust for the Meade #32 property.
An employee from the San Diego County Recorder’s Office testified that the first
page of the deed contained an instruction to return the original to an address in
Scottsdale, Arizona. Green signed this page and every other page of the 15-page
deed. Prior to signing this deed, Green had also personally received several
recorded documents via U.S. mail with a similar instruction to send the documents
to him after they were recorded. Based on this evidence, a rational juror could find
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beyond a reasonable doubt that Green knew, or reasonably could have foreseen,
that the deed would be sent via U.S. mail.2
4. Finally, Green argues that his sentence was procedurally improper and
substantively unreasonable. We first note that, although Green was released from
custody on February 16, 2016, this issue is not moot because Green was also
sentenced to and is currently on supervised release for three years. See United
States v. Verdin, 243 F.3d 1174, 1178 (9th Cir. 2001) (holding that appeal of
sentence was not moot after defendant completed his term of incarceration because
he was in his “first year of a three-year term of supervised release, which could be
affected upon resentencing”).
a. It is procedural error for a district court to fail to consider the
factors under 18 U.S.C. § 3553(a) in sentencing a defendant. United States v.
Fitch, 659 F.3d 788, 796 (9th Cir. 2011). The district court did not procedurally
err. The record as a whole reveals that the court reviewed the parties’ papers, held
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Green also argues that his mail fraud conviction must be reversed
because the mailing element cannot be established given that the only people who
used U.S. mail (employees at the Recorder’s Office) were not his co-schemers.
The Supreme Court “long ago foreclosed the argument that the [mail] must be sent
by a member of the scheme to defraud. . . . [I]t is not necessary to show that
petitioners actually mailed or transported anything themselves; it is sufficient if
they caused it to be done.” United States v. Green, 592 F.3d 1057, 1069–70 (9th
Cir. 2010) (internal quotation marks omitted).
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an extensive hearing on the factors under § 3553(a), and provided a sufficient
explanation of its individualized determination of Green’s sentence. See United
States v. Carty, 520 F.3d 984, 993–95 (9th Cir. 2008) (en banc).
b. The district court also did not impose a substantively
unreasonable sentence. Green contends that his sentence was unreasonable
because his co-defendant was sentenced to six months less than he was. This
argument fails. “Disparity in sentences between codefendants is not sufficient
ground to attack a proper guidelines sentence.” United States v. Crandall, 525
F.3d 907, 915 n.9 (9th Cir. 2008) (alteration omitted) (quoting United States v.
Whitecotton, 142 F.3d 1194, 1200 (9th Cir. 1998)). Green does not otherwise
challenge the substantive reasonableness of his below-Guidelines sentence.
Green’s sentence was both procedurally proper and substantively reasonable.
• ! •
The judgment of conviction and the sentence are AFFIRMED.
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