United States v. Kevin Laney , 881 F.3d 1100 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10563
Plaintiff-Appellee,
D.C. No.
v. 4:12-cr-00862-
YGR-3
KEVIN LANEY,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10605
Plaintiff-Appellee,
D.C. No.
v. 4:12-cr-00862-
YGR-2
BRIAN FEDERICO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted October 17, 2017
San Francisco, California
Filed February 5, 2018
2 UNITED STATES V. LANEY
Before: Michael Daly Hawkins, William A. Fletcher,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Hawkins
SUMMARY *
Criminal Law
The panel reversed the defendants’ convictions, and
remanded, in a case in which defense counsel stipulated that
their clients waived their right to a jury trial.
The panel concluded that the convictions are supported
by sufficient evidence, but that the jury-trial waivers were
ineffective.
The panel held that the proper practice under Fed. R.
Crim. P. 23(a) is for the defendant to personally execute the
written waiver; a written stipulation signed by defense
counsel alone—like the stipulations at issue in this case—
will not raise a presumption of validity. The panel explained
that the absence of a defendant’s signature will not constitute
reversible error if the record otherwise shows that the
defendant’s waiver was voluntary, knowing, and intelligent.
The panel could not determine from the record whether the
defendant’s waivers were voluntary, knowing, and
intelligent. The panel wrote that the stipulation here was
tantamount to an oral waiver by counsel outside the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. LANEY 3
defendant’s presence, which this court’s precedent deems
insufficient.
COUNSEL
Scott A. Sugarman (argued), Sugarman & Cannon, San
Francisco, California, for Defendant-Appellant Kevin
Laney.
Robert J. Beles (argued) and Paul McCarthy, Law Offices of
Beles & Beles, Oakland, California, for Defendant-
Appellant Brian Federico.
J. Douglas Wilson (argued), Chief, Appellate Division;
Brian J. Stretch, United States Attorney; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellee.
OPINION
HAWKINS, Circuit Judge:
In these consolidated appeals, we must determine
whether a presumption of validity attaches to a stipulation1
by defense counsel that their clients waive their right to a
jury trial on their criminal charges. Defendants Kevin Laney
and Brian Federico contend that: (1) the stipulations
submitted by their respective trial counsel did not effectively
waive their Sixth Amendment rights and (2) their
1
The stipulations were electronically signed and filed following
conference calls with the district court. There is no evidence that Laney
or Federico were present at those conferences.
4 UNITED STATES V. LANEY
convictions on several counts of conspiracy and mail fraud
are not supported by sufficient evidence. We conclude that
counsel’s stipulations in this case did not raise a presumption
of validity, and the record is insufficient to show that the jury
trial waivers were voluntary, knowing, and intelligent.
Therefore, although we conclude that the convictions are
supported by sufficient evidence, we reverse and remand
based on the ineffective jury trial waivers.
I. BACKGROUND
The scheme giving rise to the convictions below arose
out of Laney and Federico’s work in the construction and
concrete industries. Laney worked as a project manager for
Matrix Services, Inc. (“Matrix”), an industrial construction
company specializing in construction and repair work in the
energy industry. Federico worked as a manager of the
concrete company Imperial Shotcrete (“Imperial”), which
served as a subcontractor on several Matrix projects.
The state presented evidence that, in approximately
2005, Federico approached Imperial’s owner, Miguel
Ibarria, with an arrangement that would allow Ibarria,
Federico, Laney, and other Matrix project managers to make
additional money from Matrix projects. Under the
arrangement, Federico would provide Ibarria with the
specifications for a job, and Ibarria would provide a quote
consisting of the project expenses and Imperial’s standard
markup. Federico would then talk to the assigned Matrix
project manager, who would inform Federico when there
was “more room” in the budget for concrete work. Federico
would then come back to Ibarria with another, higher bid
suggestion that Imperial would in turn submit to Matrix as
its bid on the project. That new inflated bid generally
corresponded to Matrix’s internal budget ceiling for concrete
work. The Matrix project manager would approve the bid
UNITED STATES V. LANEY 5
and award the job to Imperial. Imperial would complete the
concrete work and bill Matrix “for whatever number they . . .
told [Ibarria] to make the proposal for.” Federico would
provide Ibarria with “some extra wording” to include on the
invoices to Matrix. The Matrix project manager involved
would approve the invoice, and Matrix would pay Imperial.
After Matrix paid Imperial, Imperial would receive an
invoice from a fictitious company, in fact fabricated by the
involved Matrix project managers, purporting to charge for
work associated with the project. These invoices were
entirely false and described materials not used or services
not performed. Federico would supply the project manager
with the amount to include on the false invoice, and the
project manager would submit that invoice to Imperial.
Once the project manager received a check from Imperial,
he would deposit the money in his own account and write a
check back to Federico for his agreed-upon share of the
money.
The scheme continued for several years, involved several
projects, and ultimately resulted in Laney and Federico
receiving hundreds of thousands of dollars through these
fictitious entities. In 2010, Matrix, suspecting a potential
financial fraud within the company, launched an internal
investigation and vendor audit of Imperial. The amount of
the fraud ultimately uncovered was approximately
$1.6 million.
II. PROCEDURAL HISTORY
An investigation by the Federal Bureau of Investigation
(“FBI”) soon followed Matrix’s internal investigation. The
FBI investigation led to the indictment of Laney, Federico,
Ibarria, and two other Matrix project managers, Brandon
6 UNITED STATES V. LANEY
Hourmouzus and Charles Burnette, on multiple counts of
mail fraud and conspiracy to commit mail fraud.
A. The Indictment
The Grand Jury charged Ibarria, Federico, Laney,
Hourmouzus, and Burnette with “defraud[ing] Matrix by
knowingly submitting or causing to be submitted, false and
inflated invoices to Matrix that exceeded the actual work
performed and the materials used.” It charged that Laney,
Federico, Hourmouzus, and Burnette “submitted false
invoices in the names of legitimate existing businesses and
in the names of businesses created specifically for the
purpose of perpetuating the fraud on Matrix.” Additionally,
“Ibarria marked up the false invoices received by Imperial
from the co-defendants for the businesses and passed the
inflated invoices onto Matrix knowing that they were
fraudulent. Matrix paid the invoices submitted by Imperial
and Ibarria in turn paid the appropriate co-defendants after
taking Ibarria’s mark-up as personal profit.”
In relevant part, Count One charged Ibarria, Federico,
Laney, Hourmouzus, and Burnette with “knowingly
conspir[ing] to defraud Matrix by submitting fraudulent
invoices for materials used and work performed by the
businesses knowing that the materials had not been used and
the work had not been performed.” Count Two charged
Ibarria, Federico, and Laney with mail fraud in connection
with a $90,000 check from Matrix made payable and mailed
to Imperial related to a project to repair two tanks in
McKittrick, California for Plains All-American (the
“McKittrick Project”). Count Three charged Ibarria,
Federico, and Hourmouzus with mail fraud in connection
with a $46,645 check from Matrix made payable and mailed
to Imperial related to a project in Eureka, California (the
“Eureka Project”).
UNITED STATES V. LANEY 7
Ibarria, Hourmouzus, and Burnette pled guilty to Count
One, and the government agreed to dismiss the individual
mail fraud counts charged against them. Laney and Federico
entered pleas of not guilty and proceeded to trial.
B. Jury Trial Waivers
On March 25, 2015, the court accepted a stipulation
waiving Laney’s right to a jury trial. The stipulation stated
that “[t]he parties [had] held a conference call with the
Court” several days earlier and “informed the Court that []
the defendant and the government waive their right to a jury
trial and jointly request to proceed with trial before the
Court.” The stipulation also addressed counsel’s scheduling
conflict and an agreement as to the admissibility of the
government’s business records, bank records, public
records, and evidence summaries. The stipulation contained
only counsel’s electronic signature, and the docket indicates
that it was filed by the government. The record does not
indicate that Laney was present at the telephonic hearing
preceding this stipulation.
Several days later, the court held another telephonic
conference. Federico and Laney were represented by
counsel at the conference but did not personally appear. The
court minutes state: “A stipulation as to Defendant Federico
waiving Jury Trial to be submitted. Counsel requested a
Bench Trial as to both Defendant Federico and Defendant
Laney . . . .” The parties subsequently submitted and the
court accepted a stipulation waiving Federico’s right to a
jury trial and requesting a joint bench trial. The stipulation,
which the government filed, again contains only the
prosecution and defense counsel’s electronic signatures and
sets forth other pre-trial agreements regarding documentary
evidence and trial scheduling. The stipulation also explains
that proceeding with a bench trial would allow for the
8 UNITED STATES V. LANEY
introduction of pre-trial statements to law enforcement
officers, which implicated all the defendants and could not
be introduced in a jury trial if made by a non-testifying co-
defendant. See Bruton v. United States, 391 U.S. 123, 135–
37 (1968). Thus, by submitting to a bench trial, Federico
and Laney could have a joint trial.
C. The Trial and Convictions
In the eleven-day bench trial, the government called
multiple witnesses including Ibarria, Hourmouzus, Burnette,
the individual who performed Matrix’s audit, and the lead
FBI case agent. Federico and Laney also testified during the
trial. After the conclusion of trial, the district court made
findings of facts and conclusions of law, finding Laney
guilty on Counts One and Two and Federico guilty on
Counts One, Two, and Three. The district court sentenced
Laney and Federico to sixty and seventy months in prison,
respectively. Laney and Federico timely appealed
challenging the validity of the jury trial waivers and the
sufficiency of the evidence.
III. STANDARD OF REVIEW
We review de novo the adequacy of a jury trial waiver,
United States v. Shorty, 741 F.3d 961, 965 (9th Cir. 2013).
For a challenge to the sufficiency of the evidence following
a bench trial, we review “whether, after 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.
Atkinson, 990 F.2d 501, 502–03 (9th Cir. 1993) (internal
citation and quotation omitted) (emphasis in original).
UNITED STATES V. LANEY 9
IV. DISCUSSION
A. Jury Trial Waivers
Laney and Federico contend that their convictions must
be vacated because the record does not reflect adequately
that they made voluntary, knowing, and intelligent waivers
of their rights to a jury trial.
To be valid, a defendant’s waiver of the Sixth
Amendment right to a jury trial must be voluntary, knowing,
and intelligent. United States v. Christensen, 18 F.3d 822,
824 (9th Cir. 1994). “In most cases, adherence to the dictates
of [Federal Rule of Criminal Procedure] 23(a) creates the
presumption that the waiver was voluntary, knowing, and
intelligent.” United States v. Bishop, 291 F.3d 1100, 1113
(9th Cir. 2002) (citation omitted). That rule provides that
where a defendant is entitled to a jury trial “the trial must be
by jury unless: (1) the defendant waives a jury trial in
writing; (2) the government consents; and (3) the court
approves.” Fed. R. Crim. P. 23(a). Although we have
“implore[d]” district courts to conduct colloquies with the
defendant before accepting a waiver of his or her right to a
jury trial, the failure to do so “does not violate either the
Constitution nor does it ipso facto require reversal.” United
States v. Cochran, 770 F.2d 850, 851, 853 (9th Cir. 1985)
(internal citations omitted).
In assessing the effectiveness of the waivers we must
determine first whether a written waiver must be signed, or
otherwise made, by the defendant personally—as opposed to
defense counsel—in order to comply with Rule 23(a) and
raise the presumption of validity. Although we have not yet
addressed this issue specifically, circuits that have addressed
the issue hold that the written waiver contemplated in Rule
23(a)(1) must be executed by the defendant personally; the
10 UNITED STATES V. LANEY
failure to strictly comply with that requirement, however,
does not constitute reversible error if the record otherwise
shows that the waiver was voluntary, knowing, and
intelligent. United States v. Carmenate, 544 F.3d 105, 109
(2d Cir. 2008); United States v. Leja, 448 F.3d 86, 93–94 (1st
Cir. 2006); United States v. Robertson, 45 F.3d 1423, 1432–
33 (10th Cir. 1995). The plain language of Rule 23(a), our
case law regarding jury trial waivers, and the general
presumption against finding a waiver of a constitutional right
lead us to the same conclusion.
Rule 23(a) requires “the defendant” to waive his or her
right to a jury trial “in writing.” Fed. R. Crim. P. 23(a)(1)
(emphasis added). Consistent with the plain language of the
rule, we have suggested previously that the written waiver
contemplated in Rule 23(a) is one that the defendant
personally executes. See United States v. McCurdy,
450 F.2d 282, 283 (9th Cir. 1971) (“Ideally, counsel . . .
would have called to the attention of the trial judge the
provisions of Rule 23, and McCurdy’s signature on the
appropriate form would have been obtained.”); see also
United States v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th
Cir. 1997) (“In Cochran, for example, we held that the
district court was not required to question the defendant
about his understanding of the jury waiver where the
defendant had signed a written waiver in accordance with
Fed. R. Crim. P. 23(a).” (citation omitted)). And, in Bishop
where we found a written waiver alone sufficient, the written
waiver was executed by the defendant personally. See
291 F.3d at 1113–14. 2
2
We grant Federico’s motion to take judicial notice of the waiver
form at issue in Bishop. See United States v. Aguilar, 782 F.3d 1101,
1103 n.1 (9th Cir. 2015).
UNITED STATES V. LANEY 11
Relatedly, we have permitted oral waivers in lieu of Rule
23’s writing requirement only “where the record clearly
reflects that the defendant ‘personally gave express consent
in open court, intelligently and knowingly.’” United States
v. Saadya, 750 F.2d 1419, 1420 (9th Cir. 1985) (quoting
United States v. Reyes, 603 F.2d 69, 71 (9th Cir. 1979)
(emphasis added)). In crafting this exception, we
emphasized the importance of the defendant’s verbal
confirmation of the waiver for the record in order to fulfill
the purposes of Rule 23. See United States v. Guerrero-
Peralta, 446 F.2d 876, 877 (9th Cir. 1971) (explaining that
the purpose of the writing requirement “is to provide the best
record evidence of the express consent of a defendant”
(internal quotation marks omitted)). We have acknowledged
previously that “[t]here is little support for the proposition
that [counsel’s] assurances are relevant to the question
whether a defendant’s oral waiver is knowing and
intelligent.” Shorty, 741 F.3d at 968.
Courts have a “serious and weighty responsibility” to
determine whether a waiver is knowing and intelligent,
Christensen, 18 F.3d at 826 (quoting Johnson v. Zerbst,
304 U.S. 458, 465 (1938)), and we must “indulge every
reasonable presumption against waiver of fundamental
constitutional rights,” United States v. Gonzalez-Flores,
418 F.3d 1093, 1102 (9th Cir. 2005) (quoting United States
v. Hamilton, 391 F.3d 1066, 1071 (9th Cir. 2004)).
Therefore, consistent with the plain language and
purpose of Rule 23(a) as well as the holdings of our sister
circuits, we hold that the proper practice under Rule 23(a) is
for the defendant to personally execute the written waiver; a
written stipulation signed by defense counsel alone—like the
stipulations at issue in this case—will not raise a
presumption of validity. Nevertheless, the absence of a
12 UNITED STATES V. LANEY
defendant’s signature will not constitute reversible error if
the record otherwise shows that the defendant’s waiver was
voluntary, knowing, and intelligent. See Carmenate,
544 F.3d at 108–10 (affirming based on other indicia of
validity in record despite absence of defendant’s signature),
United States v. Kahn, 461 F.3d 477, 491–92 (4th Cir. 2006)
(same); Leja, 448 F.3d at 94–95 (same); cf. Robertson,
45 F.3d at 1432–33 (reversing where only evidence of
waiver in record was stipulation signed by defense counsel
alone).
We cannot determine from the record before us whether
Laney and Federico’s waivers were voluntary, knowing, and
intelligent. The written stipulations were contained in larger
pre-trial filings bearing only the electronic signatures of
counsel, which the government filed. 3 The discussions
regarding the jury trial waivers occurred exclusively during
hearings where Laney and Federico were not present. And,
prior to trial, the district court did not address the defendants
directly about their jury trial waivers, but mentioned only in
passing that “this shouldn’t be too long given that this is not
going to be a jury trial.”
The “requirements of Rule 23 cannot be satisfied by a
post-trial reconstruction of the record.” Saadya, 750 F.2d at
1421. Consequently, we reject the contention that certain
3
The government urges that the record reflects that the defendants
waived jury trials for a strategic reason—to allow for a joint trial.
Although the Fourth Circuit found such record evidence persuasive proof
that the waiver is valid, Kahn, 461 F.3d at 491–92, evidence of strategy,
without more, is insufficient to demonstrate a knowing and intelligent
waiver under our precedent, see Shorty, 741 F.3d at 969 (“[T]hat Shorty
may have made a ‘tactical choice’ to waive a jury tells us nothing about
whether he understood what he would be giving up by making such a
choice.”).
UNITED STATES V. LANEY 13
statements made after the conclusion of trial cure the earlier
deficiencies in the record. Cf. Reyes, 603 F.2d at 71–72
(remanding based on ineffective twelve-member jury waiver
despite defendant’s post-trial confirmation that he
authorized waiver prior to counsel’s oral stipulation).
Essentially, the stipulation here is tantamount to an oral
waiver by counsel outside the defendant’s presence, which
our precedent deems insufficient. Cf. id.Because an invalid jury waiver is structural error, we
reverse and remand. See Shorty, 741 F.3d at 969.
B. Sufficiency of the Evidence
Federico and Laney contend that the evidence was
insufficient to support each count of conviction. Because a
challenge to the sufficiency of the evidence implicates a
defendant’s rights under the Fifth Amendment’s Double
Jeopardy Clause, we must address Laney and Federico’s
contentions that there was insufficient evidence to sustain
their convictions despite our holding regarding their jury
trial waivers. 4 United States v. Bailon-Santana, 429 F.3d
1258, 1262 (9th Cir. 2005). We will not set aside a
conviction for insufficient evidence “if, viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the elements of the
crime proved beyond a reasonable doubt.” Id. (quoting
4
Laney and Federico argue that there was a constructive amendment
of the indictment, warranting vacatur of their convictions. Because we
remand on the basis of their jury trial waivers, we need not reach their
additional arguments other than their challenge to the sufficiency of the
evidence. See United States v. Frederick, 78 F.3d 1370, 1381 n.9 (9th
Cir. 1996) (declining to reach constructive amendment argument).
14 UNITED STATES V. LANEY
United States v. Boulware, 384 F.3d 794, 810 (9th Cir.
2004)).
a. Count One: Conspiracy
Laney and Federico contend that there was insufficient
trial evidence to support their convictions under Count One
because the conspiracy shown at trial did not involve all
individuals charged in the Indictment. To prove a
conspiracy, the government was required to show “an
agreement between two or more persons to accomplish an
illegal objective, coupled with one or more overt acts in
furtherance of the illegal purpose.” United States v.
Hubbard, 96 F.3d 1223, 1226 (9th Cir. 1996). The
agreement may be inferred from circumstantial evidence. Id.“A single conspiracy may involve several
subagreements or subgroups of conspirators.” United States
v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984) (citation
omitted). “Typically, the inference of an overall agreement
is drawn from proof of a single objective . . . or from proof
that the key participants and the method of operation
remained constant throughout the conspiracy.” United
States v. Duran, 189 F.3d 1071, 1080 (9th Cir. 1999)
(citations omitted). Other relevant factors include: “the
nature of the scheme; the identity of the participants; the
quality, frequency, and duration of each conspirator’s
transactions; and the commonality of time and goals.”
Bibbero, 749 F.2d at 587 (citation omitted).
A reasonable trier of fact could conclude from the
evidence presented at trial that, at a minimum, Laney,
Federico, Hourmouzus, and Ibarria engaged in a single
conspiracy. Although arguing now that he intended to
defraud Imperial rather than Matrix, Federico testified that
Laney and Hourmouzus were the Matrix project managers
UNITED STATES V. LANEY 15
who were in on his “plan.” Ibarria confirmed during his
testimony that Federico presented a scheme to him that
involved Laney and Hourmouzus. He further testified to the
overall scheme and common method by which he and
Federico worked with Laney and Hourmouzus to inflate
Imperial’s bids and share in the excess profits from Matrix.
The government also elicited testimony demonstrating that
Laney and Hourmouzus worked with Federico and Ibarria to
carry out a common scheme contemporaneously and with
the same means.
Even assuming the evidence was insufficient to show
that Burnette participated in the conspiracy with Federico
and Laney, it would not be grounds for reversal. As Laney
and Federico concede, Ibarria and Burnette continued the
scheme in later projects, demonstrating at most a second
conspiracy. Although “[t]he issue of whether a single
conspiracy has been proved is a question of the sufficiency
of the evidence,” the issue becomes one of variance where
the evidence at trial tends to show the existence of two
conspiracies rather than one ongoing conspiracy as alleged
in the indictment. Duran, 189 F.3d at 1078, 1080–81 (citing
Bibbero, 749 F.2d at 586). The district court did not rely on
those projects in its findings regarding Laney and Federico,
and Laney and Federico have not demonstrated any
prejudice stemming from a variance regarding Burnette’s
participation. See id. at 1081–83.
b. Count Two: Mail Fraud Involving the
McKittrick Project
Laney also contends that there was insufficient evidence
to sustain his conviction under Count Two where the
government was required to prove under 18 U.S.C. § 1341:
“(1) . . . a scheme to defraud, (2) using or causing the use of
the mails to further the fraudulent scheme, and (3) specific
16 UNITED STATES V. LANEY
intent to defraud.” See United States v. Rogers, 321 F.3d
1226, 1229 (9th Cir. 2003).
Conceding that he fraudulently obtained money
stemming from Matrix’s payment to Imperial for the
McKittrick Project, Laney contends that his fraudulent
scheme did not induce Matrix to place the $90,000 check in
the mail, but instead occurred after Matrix had already
mailed the check. Contrary to Laney’s contentions, a
rational trier of fact could have found that he was involved
in inflating Imperial’s bid and causing Matrix to mail
Imperial the inflated check for the McKittrick Project.
Indeed, Matrix project manager Khary Sands testified at trial
that Laney was the initial project manager on the McKittrick
Project; by the time Sands took over as project manager,
Imperial had been engaged as the concrete subcontractor for
the project, and its bid already had been approved. To Sands,
the already-approved bid seemed higher than expected.
When the scope of the project expanded at Federico’s urging
after Laney had transferred to another location, the cost of
the project simply was doubled based on the original bid.
Imperial invoiced Matrix for its exact bid amount of
$90,000. And, Laney invoiced Imperial for $70,000 worth
of materials purportedly used in the McKittrick Project,
which he did not supply. In the overall scheme, the Matrix
project manager involved in inflating the bid amount was the
individual from whom Ibarria expected to receive an invoice
when the project had been completed and Matrix had paid
Imperial. And, the McKittrick Project was one of the
projects for which Ibarria expected to receive an invoice
from the Matrix project manager.
Although Laney and Federico testified that Laney had no
involvement in the McKittrick Project, a rational trier of fact
could have properly disbelieved such testimony. See Duran,
UNITED STATES V. LANEY 17
189 F.3d at 1079. Thus, viewing the evidence in the light
most favorable to the prosecution, a rational trier of fact
could have found the elements of mail fraud beyond a
reasonable doubt. See Bailon-Santana, 429 F.3d at 1262.
c. Intent to Deceive Matrix
Finally, Federico contends that there was insufficient
evidence that he acted with the specific intent to defraud
Matrix.5 To commit the crime of mail fraud, the defendant
must act with specific intent to defraud. See Untied States v.
Green, 745 F.2d 1205, 1207 (9th Cir. 1984). “The
government satisfies the requirement of proof of specific
intent . . . if it proves the existence of a scheme which was
reasonably calculated to deceive persons of ordinary
prudence and comprehension, and this intention is shown by
examining the scheme itself.” Id. (internal quotation marks
and citation omitted).
Looking at the Eureka Project charged in Count Three as
an example, the evidence established the following:
Ibarria’s initial bid for the project was $16,000.
Hourmouzus informed Federico that there was “more room”
in the budget, and at Federico’s direction, Imperial submitted
a bid for $47,000. Many other subcontractors on the project
came in significantly under budget, allowing Matrix or the
customer to realize that amount as profit or savings,
respectively. Imperial performed the contracted work and
invoiced Matrix for $46,645. The invoice was slightly under
budget in order to avoid raising red flags. After Matrix paid
5
Federico at times argues that there was no evidence that his actions
caused a loss to Matrix. As he concedes, however, actual loss is not an
element of mail fraud, as the statute proscribes both successful and
unsuccessful schemes. See United States v. Rude, 88 F.3d 1538, 1547
(9th Cir. 1996).
18 UNITED STATES V. LANEY
Imperial, Hourmouzus submitted false invoices to Imperial
for $30,000—the difference between Ibarria’s initial bid and
the ultimate invoice to Matrix. Imperial paid Hourmouzus’s
invoice, and Hourmouzus and Federico shared the profits.
Viewing this evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the
element of specific intent beyond a reasonable doubt. See
Bailon-Santana, 429 F.3d at 1262.
V. CONCLUSION
Although the defendants’ convictions were supported by
sufficient evidence, the record does not establish that Laney
and Federico’s jury trial waivers were voluntary, knowing,
and intelligent. Accordingly, we must reverse and remand.
REVERSED and REMANDED.