FILED
NOT FOR PUBLICATION OCT 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10271
Plaintiff - Appellee, D.C. No. 3:11-cr-00113-RS-1
v.
MEMORANDUM*
SHAREE MARTELL HALL, AKA
Sharee Martel Hall, AKA Sharee Martels
Hall,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted October 9, 2013
San Francisco, California
Before: D.W. NELSON, M. SMITH, and IKUTA, Circuit Judges.
Sharee Hall (Hall) appeals her conviction on one count of wire fraud, 18
U.S.C. § 1343, and one count of money laundering, 18 U.S.C. § 1957. We have
jurisdiction under 28 U.S.C. § 1291 and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Hall advances four challenges to her convictions: (1) that there was
insufficient evidence that the funds involved in her money laundering conviction
were the “proceeds” of specified criminal activity; (2) that there was insufficient
evidence to convict her of wire fraud because the government only presented
circumstantial evidence that she was directing the transfers; (3) that the district
court constructively amended the Indictment by instructing the jury on vicarious
liability; and finally (4) that the district court erred in its response to the jury’s
question regarding the scope of vicarious liability. We deal with each challenge in
turn.
I. The Money Laundering Conviction
Hall argues that she could not have laundered the “proceeds” of the wire
fraud because she was acquitted of the two charged wire fraud counts that would
have made funds available at the time she purchased the $102,500 cashier’s check
that underlies the money laundering count. In order to obtain a conviction under §
1957, however, the government need only establish that: (1) the defendant
knowingly engaged in a monetary transaction; (2) she knew the transaction
involved criminal property; (3) the property’s value exceeded $10,000; and (4) the
property was derived from a specified unlawful activity. See United States v.
Messer, 197 F.3d 330, 341 (9th Cir. 1999). There was ample evidence that Hall
knew that the funds involved in her purchase of the $102,500 cashier’s check were
the proceeds of illegal activity. In fact, the jury concluded that Hall had sufficient
knowledge of the wire fraud scheme to convict her of wire fraud based on
transactions that occurred on January 20, 2009, the day before Hall purchased the
cashier’s check. There is also ample evidence to show that the funds Hall used to
purchase the $102,500 cashier’s check were in fact the result of wire fraud. On
these facts and others, a rational trier of fact could find that Hall knowingly
engaged in a monetary transaction involving the proceeds of illegal activity.
Hall also argues that she cannot be convicted of money laundering because
the government charged that “[i]t was further a part of the scheme to defraud that
HALL used the money fraudulently transferred from [ONE Foundation’s account]
for her own purposes, including purchasing more than $100,000 worth of cashiers
checks” as an element of the indicted wire fraud counts. She contends that her
withdrawal of funds is thus an essential element of the wire fraud scheme and
consequently cannot constitute a financial transaction involving the proceeds of
independent illegal activity.
Where a scheme is ongoing, funds constitute “proceeds” of prior separate
activity where they are used outside of the scheme that generated the funds or are
not essential to carrying out the scheme’s objectives. Compare United States v.
Santos, 553 U.S. 507, 516-517 (2008) (holding that payouts to lottery winners
were not proceeds because they were essential to continuing the scheme), with
United States v. Bush, 626 F.3d 527, 538 (9th Cir. 2010) (upholding money
laundering convictions because they were part of a Ponzi scheme but were not
“central to carrying out the scheme’s objectives”). In this case Hall’s purchase of
cashier’s checks was not a central component of the wire fraud scheme. The fact
that the Indictment charged Hall with “us[ing] the money for her own purposes,
including purchasing more than $100,000 worth of cashiers checks,” does not
transform that act into an essential part of the scheme.
II. The Wire Fraud Conviction
Hall claims that the jury lacked sufficient evidence to convict her of wire
fraud. She argues that “there was no evidence adduced at trial that HALL herself
transmitted or caused to be transmitted the [transactions]” because Hall gave her
account information to Candice Ward.
Circumstantial evidence that a defendant participated in a fraudulent scheme
can support a conviction for wire fraud. See United States v. Mullins, 992 F.2d
1472, 1475-1477 (9th Cir. 1993) (affirming a wire fraud conviction where a trio of
travel agents had manipulated an airline reservation system despite the fact that
other employees could have accessed the accounts because of the circumstantial
evidence to supporting conviction). Here, the government introduced significant
circumstantial evidence that suggested that Hall was either directing or aware of
the fraudulent transactions. For example, Paypal sent an email to Hall’s personal
email address reflecting each of the transfers. On these facts and others, a rational
trier of fact could find that Hall committed wire fraud.
III. Constructive Amendment of the Indictment
Hall alleges that the vicarious liability instruction given to the jury amounts
to a constructive amendment of the Indictment because the Indictment does not
mention co-conspirators.
The plain language of the Indictment does not limit the “scheme to defraud”
to a single defendant.1 Further, “Lothian and its progeny establish the principle . . .
that vicarious liability for substantive counts of mail or wire fraud does not require
that the indictment charge conspiracy.” United States v. Stapleton, 293 F.3d 1111,
1119 (9th Cir. 2002) (alterations omitted). Accordingly, the vicarious liability
instruction did not present “a complex of facts [at trial] distinctly different from
those set forth in the charging instrument,” or a situation in which “the crime
charged [in the indictment] was substantially altered at trial, so that it was
impossible to know whether the grand jury would have indicted for the crime
actually proved.” United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984).
IV. Response to Jury Question Two
1
The Indictment charges Hall with “engag[ing] in a scheme to defraud ONE
Foundation and HSBC Bank USA by misappropriating money that belonged to
ONE Foundation for her own benefit.”
The District Court did not commit plain error by responding to Jury
Question Two by referring the Jury to the previously issued Jury Instructions.
United States v. Preston, 706 F.3d 1106, 1122 (9th Cir. 2013). The Jury Question
was unclear. Accordingly, either a “yes” or a “no” response would have presented
an equal if not greater chance of being “misleading, unresponsive, or legally
incorrect.” United States v. Anekwu, 695 F.3d 986, 986 (9th Cir. 2012).
AFFIRMED.