United States v. Kenneth Moore

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 12 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 08-50427
Plaintiff - Appellee, D.C. No. 3:03-cr-00850-W-15
v.
MEMORANDUM *
KENNETH WAYNE MOORE,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted February 10, 2010 **
Pasadena, California
Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
Kennth Moore appeals his jury conviction and sentence for conspiracy, wire
fraud, and money laundering. We have jurisdiction over Moore’s appeal of the
jury verdict under 28 U.S.C. § 1291 and over Moore’s appeal of his sentence under
18 U.S.C. § 3742(a).
Moore did not move for judgment of acquittal, so the sufficiency of the
evidence to support his conviction is reviewed for plain error. United States v.
DeGeorge, 380 F.3d 1203, 1216–17 (9th Cir. 2004). Moore’s sole argument
regarding sufficiency of the evidence is that the government failed to prove that he
had the specific intent to defraud, and therefore the jury could not convict him.
There was ample evidence. For example, after Harrell’s scheme bankrupted
Moore’s own construction company, Moore went to work for Harrell and was paid
more than $16,000 per month in cash and other benefits to recruit other victims.
Moore told victims that there was no risk in investing in the scheme, that no one
had ever lost money on the deal, and that he was very happy with the results of his
own investment, all of which he knew to be untrue. He was caught on tape
approving Harrell’s plan to create shell companies to avoid liability for money
laundering and securities violations. Viewing this and the other incriminating
evidence in the light most favorable to the government, a rational juror could
conclude that Moore participated in the scheme knowing of its fraudulent character
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and intending to deprive others of their money or property. See Carpenter v.
United States, 484 U.S. 19, 27 (1987) (“Sections 1341 and 1343 reach any scheme
to deprive another of money or property by means of false or fraudulent pretenses,
representations, or promises.”).
Moore next contends that his Sixth Amendment right to confront the
witnesses against him was violated. The district court admitted into evidence
audio recordings made by a government informant, Bob Smith, on which
coconspirator Harrell made incriminating statements. Moore argues that Smith’s
and Harrell’s statements were testimonial hearsay under Crawford v. Washington,
541 U.S. 36 (2004). Harrell’s statements were admissible as statements of a
coconspirator. United States v. Bridgeforth, 441 F.3d 864, 869 n.1 (9th Cir. 2006)
(“[C]o-conspirator statements are not testimonial.”). Smith’s statements were used
solely to provide context for Harrell’s statements about the logistics of the
operation, so they are not hearsay and do not run afoul of the Confrontation Clause
under Crawford, 541 U.S. at 59 n.9 (“The [Confrontation] Clause . . . does not bar
the use of testimonial statements for purposes other than establishing the truth of
the matter asserted.”). See also United States v. Whitman, 771 F.2d 1348, 1352
(9th Cir. 1985) (concluding that an informant’s statements were admissible as
non-hearsay to place a conspirator’s statements in context).
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The district court did not err in admitting Moore’s tax returns for years
besides 2001, the only year the government charged Moore with tax evasion. The
other years’ returns were relevant to rebut the argument that Moore’s failure to
report income in 2001 was accidental or due to his tax preparer’s error. United
States v. Snow, 529 F.2d 224, 226 (9th Cir. 1976) (holding that prior failures to file
returns are admissible to show willfulness in a tax fraud case). Furthermore,
Moore did not argue below, as he does now, that the returns for the other years
were inadmissible under Rules 403 or 404(b). There was no plain error.
The sentence imposed by the district court was not substantively
unreasonable. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
Moore was a major participant in a fraud that bilked investors of tens of millions of
dollars. The district judge did not ignore Moore’s personal history and
characteristics in deciding upon his sentence. 18 U.S.C. § 3553(a)(1). To the
contrary, he specifically considered them in imposing a below-Guideline sentence.
Nor did the sentence imposed by the district court create unwarranted disparities
between Moore and his codefendants. 18 U.S.C. § 3553(a)(6). Other defendants
who had helped to recruit new victims with promises of a risk-free, high-return
investment, as Moore had, received similar sentences.
AFFIRMED.
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