United States v. Kenny Kirby

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10155
Plaintiff-Appellee, D.C. No.
2:12-cr-01927-NVW-4
v.
KENNY RAY KIRBY, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10160
Plaintiff-Appellee, D.C. No.
2:12-cr-01927-NVW-5
v.
DAVID P. RACHEL,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10178
15-10306
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-01927-NVW-2
STEVEN BREWER,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10179
Plaintiff-Appellee, D.C. No.
2:12-cr-01927-NVW-3
v.
JOEL STEPHEN CUTULLE, AKA Joel
Cutulle,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted May 11, 2017**
Pasadena, California
Before: O’SCANNLAIN and OWENS, Circuit Judges, and CHRISTENSEN,***
Chief District Judge.
Defendants Kenny Ray Kirby (“Kirby”), David Paul Rachel (“Rachel”), Joel
Stephen Cutulle (“Cutulle”), and Steven Thomas Brewer (“Brewer”) appeal from
the judgment of the district court following a jury verdict finding Defendants guilty
of conspiracy, wire fraud, and money laundering. As the parties are familiar with
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Dana L. Christensen, United States Chief District
Judge for the District of Montana, sitting by designation.
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the facts, we do not recount them here. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
1. The district court did not err in denying Defendants’ motions for
acquittal.
First, contrary to Defendants’ contentions, the superseding indictment does
not tie the money laundering counts to the substantive wire fraud counts. Despite
incorporating the previous paragraphs by reference, the superseding indictment
plainly defines the “specified unlawful activity” for purposes of 18 U.S.C. § 1957
generically as wire fraud.
Second, Rachel and Cutulle were not exposed to Double Jeopardy because
they were charged and convicted of money laundering, not the uncharged wire
fraud underlying those counts. See United States v. Rogers, 321 F.3d 1226, 1229
(9th Cir. 2003) (relying on evidence of uncharged actions relating to broader
conspiracy). For similar reasons, the money laundering counts are not duplicitous.
See United States v. Golb, 69 F.3d 1417, 1429 (9th Cir. 1995) (drug trafficking, the
specified unlawful activity, was “not part of the charged money-laundering
offense”).1
Third, viewed in the light most favorable to the prosecution, there is
1
Cutulle waived his merger argument under United States v. Bush, 626 F.3d 527,
535-38 (9th Cir. 2010), by failing to raise it in his opening brief. See McKay v.
Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009).
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sufficient evidence that Kirby knowingly participated in the conspiracy, including
his receipt and rapid withdrawal of $6.1 million in escrow deposits, the importance
depositors placed on Kirby’s status as an attorney, his signing of various escrow
agreements, and evidence that he wrote letters in furtherance of the scheme. See
United States v. Grasso, 724 F.3d 1077, 1086 (9th Cir. 2013) (circumstantial
evidence can establish a defendant’s knowing connection to a conspiracy).
Further, Kirby is criminally liable for acts that occurred after he stopped actively
participating in the scheme because he did not withdraw from the conspiracy. See
United States v. Lothian, 976 F.2d 1257, 1261 (9th Cir. 1992).
Fourth, there is sufficient evidence that Rachel agreed to partake in the
conspiracy. From March 2010 to October 2010, Rachel received and quickly
disbursed $1.8 million in escrow deposits. There was evidence as early as March
10, 2010 that Rachel was “primed.” Rachel reassured a depositor who was wary
about the scheme, speaking with him by phone. And, even after he was no longer
the escrow agent, Rachel wrote a letter stating that funding was imminent in
August 2011.
In sum, the district court did not err in denying Defendants’ motions for
acquittal.
2. The district court did not abuse its discretion in conducting voir dire.
Although a prospective juror made a biased remark against criminals and
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inmates before the venire panel, this remark did not taint the jury. In contrast to
Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1997), here the prospective juror
made a single statement before the venire panel and the statement was unrelated to
the criminal charges at issue.2 To the extent that Brewer was subsequently
impeached with his prior conviction, this occurred on the twelfth day of trial after
the jury had heard ample evidence of the scheme. In addition, in light of the
“broad discretion” judges enjoy over voir dire, the district court did not abuse its
discretion in declining to conduct individual voir dire or to issue a limiting
instruction. See Paine v. City of Lompoc, 160 F.3d 562, 564 (9th Cir. 1998).
3. The district court did not abuse its discretion in allowing the
government to impeach Brewer with his prior conviction.
While Federal Rule of Evidence 609(b) limits a party’s ability to impeach a
witness for truthfulness with a criminal conviction over ten years old, there was no
abuse of discretion here given (1) the nature and importance of Brewer’s
testimony; (2) the high probative value of Brewer’s prior fraud conviction; (3) the
centrality of Brewer’s credibility; and (4) the fact that the district court gave
Brewer advanced notice of the potential impeachment prior to testifying, and
warned his counsel to make “strategic judgments” about how to conduct Brewer’s
2
The prospective juror’s statement also did not raise any Confrontation Clause
issues. Cf. Jeffries v. Wood, 114 F.3d 1484, 1490 (9th Cir. 1997) (where juror had
prior knowledge of the defendant’s criminal history).
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direct examination. See United States v. Hursh, 217 F.3d 761, 768 (9th Cir. 2000).
4. The district court did not abuse its discretion in admitting the
summary charts.
The summary charts were admissible under Federal Rule of Evidence 1006.
To the extent that they contained evidence of uncharged acts that were part of the
conspiracy, it is well-established that “the government in a conspiracy case may
submit proof on the full scope of the conspiracy; it is not limited in its proof to the
overt acts alleged in the indictment.” United States v. Rizk, 660 F.3d 1125, 1131
(9th Cir. 2011).3
5. The district court did not plainly err in questioning witnesses.
The district court’s questioning of witnesses, including Brewer, did not give
“an appearance of advocacy or partiality.” United States v. Scott, 642 F.3d 791,
799 (9th Cir. 2011). The judge’s questions appear designed to clarify the murky
financial concepts discussed by the witnesses, and to manage the trial. Further, the
judge gave three separate curative instructions ordering the jury not to interpret his
questions as evincing disbelief in any witness’s testimony. Accordingly, the
judge’s questioning did not constitute plain error. See United States v. Morgan,
376 F.3d 1002, 1008 (9th Cir. 2004) (“Even in cases where a judge’s participation
in a trial is ‘extreme,’ that participation generally does not warrant reversal if a
3
Moreover, the evidence of the full scope of the conspiracy contained in the charts
did not implicate the Confrontation Clause.
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later curative instruction is given.”).
6. The district court’s Pinkerton4 liability instruction did not constitute
plain error.
The district court instructed the jury on Pinkerton liability using Ninth
Circuit Model Criminal Jury Instruction 8.25, an instruction that this court has
repeatedly held accurately states the law. See United States v. Alvarez-Valenzuela,
231 F.3d 1198, 1203 (9th Cir. 2000) (describing instruction with identical language
to instruction 8.25); United States v. Gadson 763 F.3d 1189, 1215 (9th Cir. 2014)
(holding that instruction 8.25 “directly tracks the language of Pinkerton”).
Defendants also contend that instruction 8.25 did not require the jury to
unanimously determine which defendant committed the underlying act that gave
rise to Pinkerton liability. This was unnecessary because, as here, “[w]hen an
indictment includes a single conspiracy count conjunctively alleging multiple
offenses, a jury may convict by finding a conspiracy to commit any or all of the
conjunctive acts alleged.” United States v. Castro, 887 F.2d 988, 993 (9th Cir.
1989). Accordingly, there was no plain error.
7. The district court’s money laundering instruction did not constitute
plain error.
As explained above, the superseding indictment does not tether the money
laundering counts to the substantive wire fraud counts. Accordingly, the district
4
Pinkerton v. United States, 328 U.S. 640 (1946).
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court’s money laundering instruction did not constitute plain error.
8. The district court did not abuse its discretion in denying Rachel’s
motion to sever.
“It is well-established that in the federal system there is a preference for joint
trials where defendants have been jointly indicted.” United States v. Hernandez-
Orellana, 539 F.3d 994, 1001 (9th Cir. 2008). A district court abuses its discretion
in denying a motion to sever where the “joint trial was so manifestly prejudicial as
to require the trial judge to exercise his discretion in but one way, by ordering a
separate trial.” United States v. Jenkins, 633 F.3d 788, 807 (9th Cir. 2011)
(internal quotation marks omitted). No such prejudice existed here. Even at a
separate trial, evidence of the “full scope of the conspiracy” would have been
admissible against Rachel. Rizk, 660 F.3d at 1131. Moreover, the district court
issued a limiting instruction to prevent Rachel from being unduly tainted by the
actions of his co-conspirators. Accordingly, the district court did not abuse its
discretion in denying Rachel’s motion to sever.
AFFIRMED.
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