Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Feb. 8, 1999.
Appeal from the United States District Court for the Northern District of California Claudia Wilken, District Judge, Presiding.
Before SCHROEDER, FERNANDEZ, and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
This appeal arises from defendant Ronald Loetz's conviction by a jury of 35 counts of wire fraud and one count of money laundering. Loetz initially appeals from: (1) the district court's denial of his motion for new trial based upon newly discovered evidence; (2) its admission of evidence regarding a related civil judgment against Loetz; and (3) its imposition of a four-level enhancement for Loetz's role as an organizer or leader. We affirm the district court on each of these grounds.
Loetz also appeals from the district court's application of a two-level adjustment for obstructing justice. Because neither the district court nor the Pre-Sentence Report expressly found that Loetz willfully gave false testimony, we remand for findings and resentencing on that enhancement.
The parties are familiar with the factual and procedural history; therefore, we will not recount it here.
I. Motion for New Trial
Loetz first contends that the district court abused its discretion in denying his motion for new trial based upon newly discovered evidence, his bipolar disorder. In order to succeed on his motion, Loetz must have demonstrated adequately that: (1) the evidence of his mental condition was newly discovered; (2) the failure to discover the evidence sooner was not the result of a lack of diligence; (3) the new evidence is material to the issues at trial; (4) the evidence is neither cumulative nor impeaching; and (5) the evidence indicates that a new trial would likely result in an acquittal. United States v. Sitton, 968 F.2d 947, 959-960 (9th Cir.1992); see also United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.1991). In short, Loetz must have presented evidence that his alleged mental disorder would have negated his intent to defraud, and that such evidence likely would have resulted in an acquittal. Sitton, 968 F.2d at 959-60.
The record does not support Loetz's motion. Even assuming that Loetz had bipolar disorder at the time the crimes were committed, two of the three experts opined that the disorder did not negate Loetz's intent to defraud. In fact, the evidence demonstrates that Loetz's organization and operation of this complex enterprise was calculated and thorough. Because the district court did not abuse its discretion, we affirm the denial of Loetz's motion for new trial.
II Evidence of Prior Civil Judgment
Loetz contends that: (1) the district court committed reversible error by taking judicial notice of a prior related civil judgment and that (2) the district court's limiting instruction was inadequate. We reject each of these arguments.
Even assuming that the court erred in admitting the judgment of the civil trial to prove that the Lloyd's policies were not genuine, the error was harmless because the record contains an abundance of other admissible evidence that establishes this point. Because the admission of the civil judgment was cumulative, any error was harmless. See United States v. Crosby, 75 F.3d 1343, 1349 (9th Cir.1996).
For the same reason, Loetz's objection to the district court's limiting instruction is without merit. Although that instruction was not a model of clarity, the jury was properly instructed elsewhere on the appropriate burdens of proof. Taken as a whole, we find no reversible error in the district court's instruction. See United States v. de Cruz, 82 F.3d 856, 864 (9th Cir.1996).
III Adjustment for Loetz's Role as an Organizer or Leader
Loetz also appeals from the district court's four-level enhancement for his role as an organizer or leader. To qualify for an adjustment under U.S.S.G.§ 3B1.1, a defendant must exercise some degree of control over at least one other participant "who is criminally responsible for the commission of the offense." U.S.S.G. § 3B1.1, Application Note 2; United States v. Anderson, 942 F.2d 606, 615 (9th Cir.1991) (en banc), abrogated by amendment, U.S.S.G. § 3B1.1 (1993).
Loetz initially asserts that the record does not support the district court's conclusion that he led a participant. However, evidence of Loetz's leadership abounds. The record supports the inference: (1) that Loetz solicited the knowing participation of Jorge Aguilar and Stacy Byham to act as agency heads of ABT and ABBA and to create the false appearance that Loetz was not in control of those organizations; (2) that Loetz directed Aguilar to portray himself as ABT's plan fiduciary; (3) that Loetz directed Bruno Krovacic to create the false documents to establish ABT and ABBA; and (4) that Loetz had Basil Moir provide false Lloyd's certificates to perpetuate the fraudulent scheme. It is clear that sufficient evidence supports the district court's finding that Loetz was an organizer or leader.
Additionally, Loetz claims that the enhancement should not be applied to both the wire fraud and money laundering offenses. We disagree. The district court was required to determine the applicable guideline range for each count, including the appropriate adjustments, before applying the grouping rules that Loetz relies on. See U.S.S.G., Chapter 3, Part D. Sentences under these separate statutes are determined under different sections of the guidelines (see U.S.S.G. § 2F1.1 (wire fraud) and § 2S1.1 (money laundering)). Moreover, contrary to his position, Loetz did exert additional "organization and leadership" in directing Aguilar to wire money necessary to acquire Life of Florida.
Accordingly, we affirm the district court's four-level enhancement for Loetz's role as an organizer or leader.
IV Enhancement for Obstruction of Justice
Loetz contends that the district court erred in applying a two-level adjustment for perjury because it failed to make specific findings. If a defendant objects to an enhancement resulting from his trial testimony, the district court must review the record and make independent findings to "establish a willful impediment to or obstruction of justice." United States v. Dunnigan, 507 U.S. 87, 95 (1993). Further, the district court's findings must support all of the elements of a perjury violation, including falsity and willfulness. Id.; United States v. Robinson, 63 F.3d 889, 891-92 (9th Cir.1995).
Here, Loetz argues that the district court may not adopt the Pre-Sentence Report in making the findings required by Dunnigan. However, there is no prohibition against the district court's explicit adoption or incorporation by reference of written findings contained elsewhere, such as in the PSR. But to satisfy Dunnigan, the findings--whether adopted, incorporated, or specially drafted by the judge herself--must support all of the elements of perjury. The problem in this case is that findings adopted from the PSR do not do that. Accordingly, we remand to give the district court the opportunity to make additional findings and for resentencing. If it determines that the enhancement should still stand, it need only make appropriately detailed findings, and reinstate the sentence. It need not revisit any other sentencing questions.
AFFIRMED IN PART; VACATED IN PART; REMANDED FOR RESENTENCING.