United States v. Clive Bowen ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50184
Plaintiff-Appellee, D.C. No. 2:16-cr-00715-GW-1
v.
MEMORANDUM*
CLIVE PATRICK BOWEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted August 13, 2020
Pasadena, California
Before: O’SCANNLAIN, CALLAHAN, and COLLINS, Circuit Judges.
Clive Patrick Bowen was convicted of five counts of bank fraud (18 U.S.C.
§ 1344(2)), one count of trafficking in or using an unauthorized access device (18
U.S.C. § 1029(a)(2)), and one count of aggravated identity theft (18 U.S.C.
§ 1028A(a)(1)). He appeals his conviction and his sentence of 42 months’
imprisonment, $65,180 in restitution, and three years of supervised release. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
facts are known to the parties, and we do not repeat them here.
I
Contrary to Bowen’s argument, presented for the first time on appeal, there
was sufficient evidence that Bank of America was FDIC-insured at the time of the
fraudulent transactions to support the jury’s verdict. A rational trier of fact could
conclude that the witness who testified to Bank of America’s FDIC-insured status
understood “in 2016” to mean “for the calendar year 2016.” A rational trier of fact
could therefore find that the prosecution proved “the essential elements of the crime
beyond a reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.
2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
II
Bowen contends that several asserted trial errors merit reversal of the
judgment, whether standing alone or cumulatively. We are not persuaded.
A
The district court did not commit plain error by admitting identification
testimony from Bank of America senior fraud investigator Karen Finocchiaro or
Postal Inspector Wilford Claiborne. Each witness’s testimony met the criteria for
lay witness opinion testimony under Federal Rule of Evidence 701. Specifically, the
testimony from each witness was likely “helpful to . . . determining a fact in issue.”
Fed. R. Evid. 701(b); see United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005).
2
Finocchiaro’s identification testimony was helpful to the jurors because she had
observed numerous surveillance videos of the suspect under varying conditions, as
well as surveillance videos of Bowen making legitimate withdrawals from his
account, such that she had an opportunity to compare the suspect’s manner to
Bowen’s. The jury could not observe such videos and had only still photographs.
Meanwhile, after reviewing still photographs of Bowen, Claiborne saw Bowen in
person during a vehicle stop that officers initiated only after Bowen—wearing a
similar hat, and driving a similar paper-plated vehicle, as the suspect—drove
multiple times past the exact house to which a controlled delivery of a fraudulently-
ordered ATM card had been made.
B
The district court’s issuance of a dual-role jury instruction for Finocchiaro and
Claiborne was an appropriate exercise of its discretion. Such an instruction is
recommended when a primarily percipient witness involved in an investigation
provides testimony based on experience and training that might be considered an
expert opinion. See United States v. Vera, 770 F.3d 1232, 1242 (9th Cir. 2014);
United States v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007).
C
Even assuming that Bowen adequately preserved the objections he now makes
to the admissibility of the spreadsheets, we conclude that the district court correctly
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admitted the spreadsheets into evidence. Finocchiaro certified that the data
displayed in the spreadsheets were made at or near the time of the occurrences
recorded, “by—or from information transmitted by—someone with knowledge,”
and were regularly made and kept in the course of Bank of America’s regularly
conducted business. See Fed. R. Evid. 803(6). The printout of such data was
therefore admissible. See U-Haul Intern., Inc. v. Lumbermens Mut. Cas. Co., 576
F.3d 1040, 1043–44 (9th Cir. 2009). Moreover, the spreadsheets were admissible as
summaries of “voluminous” computerized business records, the full versions of
which could not be conveniently examined in court. See Fed. R. Evid. 1006.
In addition, any error in admitting the spreadsheets was harmless. There was
ample evidence in the record supporting the jury’s verdict with respect to each
charged transaction, including the time-stamped surveillance photographs, the
testimony from Finocchiaro, the victims’ bank statements listing each transaction at
issue, and testimony from each victim confirming that each such transaction was
fraudulent. We likewise perceive no prejudicial error in admitting summary
documents based on data extracted from the spreadsheets.
D
Finally, we consider the district court’s denial of Bowen’s request for an
eleventh continuance. We reject Bowen’s argument that such a denial constitutes a
structural error. Even when a request for a continuance immediately follows the
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grant of a defendant’s right to self-representation, we review the denial of such a
request for abuse of discretion. See Armant v. Marquez, 772 F.2d 552, 556–57 (9th
Cir. 1985). Bowen’s citation to United States v. Farias, 618 F.3d 1049, 1053 (9th
Cir. 2010), is inapposite. There, the structural error was the district court’s threat to
deny any continuance, a threat that was made during a Faretta colloquy to dissuade
the defendant from exercising his right to self-representation. Id. at 1054–55. Here,
by contrast, the request was made several days after the Faretta colloquy.
To determine whether the denial of a continuance was an abuse of discretion,
we consider the four factors set forth in United States v. Flynt, 756 F.2d 1352, 1358–
59 (9th Cir. 1985). First, Bowen seems to us to have been neither diligent nor
attempting a simple delay tactic. Second, Bowen failed sufficiently to explain how
the continuance would be useful. “[G]eneral allegations that a continuance would
have allowed him to prepare a better defense . . . are insufficient to allow us to find
an abuse of discretion.” United States v. Sarno, 73 F.3d 1470, 1493 (9th Cir. 1995).
Third, the inconvenience of rescheduling a multi-day trial with at least one witness
flying in from out of town was not trivial. Fourth, Bowen has failed to show that he
was materially prejudiced by the district court’s denial. His claim that more time
would have effectively allowed him to acquire the litigator’s general skillset is not
sufficient. See id. We therefore conclude that the denial was an appropriate exercise
of discretion.
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III
Bowen further challenges the validity of his waiver of his right to counsel.
Because the waiver was knowing, intelligent, and unequivocal, we conclude that it
was valid. See Faretta v. California, 422 U.S. 806, 835 (1975); United States v.
French, 748 F.3d 922, 928–29 (9th Cir. 2014).
It is clear to us that Bowen understood the “dangers and disadvantages” of
self-representation after the district court’s vivid, detailed, and carefully explained
Faretta colloquy. French, 748 F.3d at 929. Contrary to Bowen’s argument on
appeal, he need not have been made aware of the risks of the specific gaps in his
knowledge of criminal-defense tactics. That is because “[t]he law ordinarily
considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully
understands the nature of the right and how it would likely apply in general in the
circumstances—even though the defendant may not know the specific detailed
consequences of invoking it.” Iowa v. Tovar, 541 U.S. 77, 92 (2004) (quoting United
States v. Ruiz, 536 U.S. 622, 629 (2002)); see also McCormick v. Adams, 621 F.3d
970, 977 (9th Cir. 2010) (“We have not “prescribed a meticulous litany to be
employed” by a trial court in a colloquy regarding a defendant’s request for a Faretta
waiver.” (quoting United States v. Keen, 104 F.3d 1111, 1114 (9th Cir. 1996))).
Furthermore, we see no reason to reverse the district court’s finding of fact
that the waiver was unequivocal. Although Bowen asked whether his previous
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attorney, Stephen Demik, could “be my back up,” his waiver was never conditioned
upon the appointment of Demik as back-up. Cf. United States v. Kienenberger, 13
F.3d 1354, 1356 (9th Cir. 1994) (concluding that requests to represent oneself are
not unequivocal when such requests “were always accompanied by [the defendant’s]
insistence that the court appoint ‘advisory’ or ‘standby’ counsel to assist him on
procedural matters”). Moreover, once Demik was appointed as standby counsel, the
court clarified to Bowen that “the obligation is still on yourself to represent yourself”
and Bowen unequivocally replied “[t]hat is what I am doing here today.” See United
States v. Audette, 923 F.3d 1227, 1234–35 (9th Cir. 2019) (holding that
equivocations in the middle of the Farretta colloquy do not render the waiver
equivocal if the defendant later demonstrates that he has been reassured and wishes
to waive his right to counsel).
IV
Bowen argues that the district court’s findings of the intended losses, the
actual losses, and the number of victims were each clearly erroneous, rendering its
application of the Sentencing Guidelines and its restitution order abuses of
discretion. Such findings of fact need only be held to a preponderance-of-the-
evidence standard because, given the 24-month mandatory minimum for aggravated
identity theft pursuant to 18 U.S.C. § 1028A, the enhancement did not have “an
extremely disproportionate effect on [Bowen’s] sentence.” United States v. Pike,
7
473 F.3d 1053, 1058–59 (9th Cir. 2007) (applying a preponderance-of-the-evidence
standard to a sentence enhancement more profound than Bowen’s).
The district court was permitted to credit Finocchiaro’s trial testimony as to
the financial loss and the number of victims. See United States v. Armstead, 552
F.3d 769, 780 (9th Cir. 2008). Consequently, the district court reasonably found, by
a preponderance of the evidence, facts that justify the sentence enhancement and
restitution order.
V
Because there is a “direct conflict” between the district court’s unambiguous
oral pronouncement of the sentence and supervised-release conditions 3, 4, and 6 in
the written judgment, we remand only “so that the district court can make the written
judgment consistent with the oral pronouncement.” United States v. Hicks, 997 F.2d
594, 597 (9th Cir. 1993) (quoting United States v. Munoz-Dela Rosa, 495 F.2d 253,
256 (9th Cir. 1974)). We otherwise reject Bowen’s challenges to the conditions of
his supervised release.
AFFIRMED IN PART AND REMANDED IN PART.
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