Opinion
No. 05-50904.
Argued and Submitted July 13, 2007 Pasadena, California.
July 31, 2007.
Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding, D.C. No. CR-02-00089-DOC.
Before: SILVERMAN, W. FLETCHER, and CLIFTON, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Alan Baiocchi appeals from his jury conviction and 63-month sentence for two counts of wire fraud in violation of 18 U.S.C. §§ 1343, 2. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
Baiocchi first contends that his convictions should be reversed because he withdrew from the wire fraud scheme prior to the phone calls charged in the indictment. This contention fails because the evidence presented at trial, taken in the light most favorable to the verdict, supports the jury's rejection of the withdrawal defense — i.e., the defense that Baiocchi had taken "definite, decisive, and positive steps" to disassociate from the scheme. United States v. Lothian, 976 F.2d 1257, 1264 (9th Cir. 1992) (quoting Reisman v. United States, 409 F.2d 789, 793 (9th Cir. 1969)). Moreover, even if he had withdrawn, the phone calls charged in the indictment were the foreseeable results of actions taken by Baiocchi prior to his withdrawal, for which he remains liable pursuant to Lothian, 976 F.2d at 1263, 1265-66.
Baiocchi next asserts that the district court plainly erred in instructing the jury. He contends that the district court "effectively eliminated" the withdrawal defense by instructing the jury that withdrawal is not a defense to charged acts that are the reasonably foreseeable results of pre-withdrawal conduct. This instruction accurately stated the law. See Lothian, 976 F.2d at 1267. Baiocchi also argues that the court erred in instructing the jury on the statute of limitations. Baiocchi cites no authority for the proposition that the statute of limitations begins to run, in a wire fraud case, from the moment of a defendant's withdrawal from the scheme, rather than from the occurrence of the last foreseeable result of pre-withdrawal conduct. Regardless of whether his contention has merit, any error by the district court cannot, under these circumstances, constitute a plain error. Finally, the instruction defining "knowingly" was taken from the Ninth Circuit Model Criminal Jury Instruction 5.6, and the formulation used was one that has been implicitly approved. See United States v. Trevino, 419 F.3d 896, 901 (9th Cir. 2005), cert. denied, 547 U.S. 1022 (2006). Although Baiocchi argues on appeal that the wording may have been misleading, any potential confusion here does not rise to the level of plain error.
Nor did the district court abuse its discretion in sustaining hearsay objections to the letter written by Baiocchi's lawyer and to questions propounded to McClintock and Warner calling for Baiocchi's out-of-court statements. Each item was hearsay and not subject to any exception. See United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (holding that the district court did not abuse its discretion in excluding exculpatory hearsay statements); United States v. Faust, 850 F.2d 575, 585-86 (9th Cir. 1988) (noting that opportunity for reflection weighs against admission of hearsay statements under the exceptions for state of mind and present sense impression). To the extent that the letter was evidence of a communication and therefore was not hearsay, its exclusion was harmless error. United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005).
Baiocchi's claim of improper venue must also fail because the evidence presented at trial demonstrated that, regardless of where the calls were made or received, Baiocchi orchestrated the wire fraud scheme from his company's office in Newport Beach, California. See United States v. Pace, 314 F.3d 344, 349-50 (9th Cir. 2002) (citing United States v. Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994), and noting that venue is proper in wire fraud cases where the transmission was orchestrated).
Although we agree that it was improper for the prosecutor to argue during rebuttal that defense counsel "knows" that certain evidence "proves his client's guilt," the comment was isolated and the jury was instructed that statements made by the attorneys were not to be considered as evidence. Reviewed for plain error, the record does not suggest that the prosecutor's comment, viewed in the context of the entire trial, so affected the jury's ability to consider the totality of the evidence fairly as to warrant reversal. See United States v. Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005).
Nor are we able to conclude that Baiocchi was denied a fair trial because sentencing allegations were included in the indictment and presented to the jury for determination beyond a reasonable doubt. Although the presentation of sentencing factors to the jury is not required under United States v. Booker, 543 U.S. 220 (2005), neither is it forbidden. In this case, there was no prejudice because the evidence presented at trial in support of the sentencing allegations was probative as to the substantive counts.
Lastly, we have reviewed all of Baiocchi's challenges to his sentence and find them to be without merit. The district court's consideration of the sentencing factors set forth in 18 U.S.C. § 3553 was fully consistent with the Supreme Court's decision in Rita v. United States, 127 S. Ct. 2456 (2007). Nor has Baiocchi identified any error in the district court's imposition of guideline adjustments, evidentiary rulings, loss finding, or restitution order that would warrant a remand for re-sentencing.
AFFIRMED.