FILED
NOT FOR PUBLICATION JUN 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10137
Plaintiff - Appellee, D.C. No. 2:07-CR-00135-KJD-
LRL-1
v.
STEPHEN LEE SELDON, M.D., MEMORANDUM *
Defendant - Appellant,
UNITED STATES OF AMERICA, No. 09-10150
Plaintiff - Appellee, D.C. No. 2:07-cr-00135-KJD-
LRL-2
v.
DEBORAH MARTINEZ SELDON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted June 15, 2010
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and GONZALEZ, Chief
District Judge.**
Stephen Lee Seldon and Deborah Martinez Seldon appeal their jury
convictions and sentences for mail fraud under 18 U.S.C. § 1341, aiding and
abetting under 18 U.S.C. § 2, and misbranding a drug while held for sale under 21
U.S.C. §§ 331(k) and 333(a)(2). We affirm.
The warrant authorizing the search of defendants’ anti-aging clinic did not
violate the Fourth Amendment. The warrant specified that any search of seizable
materials intermingled with non-seizable materials would be carried out by trained
computer personnel and outlined detailed procedures “to avoid turning a limited
search for particular information into a general search of office file systems and
computer databases.” United States v. Comprehensive Drug Testing, Inc., 579
F.3d 989, 998 (9th Cir. 2009) (en banc). The warrant and its supporting materials
were not invalid under our decision in United States v. Tamura, 694 F.2d 591 (9th
Cir. 1982). Indeed, the warrant appears to have been specifically drafted to comply
with Tamura’s requirements.
**
The Honorable Irma E. Gonzalez, Chief United States District Judge
for the Southern District of California, sitting by designation.
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To the extent appellants challenge the search as going beyond the scope of
the warrant, the district court did not plainly err in holding otherwise. See United
States v. Olano, 507 U.S. 725, 731-32 (1993). Moreover, only evidence within the
scope of the warrant was used at appellants’ trial. Where, as here, a warrant is
valid on its face, the Fourth Amendment does not require that lawfully seized
evidence be suppressed even where “the police unlawfully seize[] . . . items
unconnected to the prosecution.” Waller v. Georgia, 467 U.S. 39, 43 n.3 (1984);
see also Tamura, 694 F.2d at 597.
We review the district court’s admission of evidence relating to the so-called
Florida Incident for plain error, United States v. Khan, 993 F.2d 1368, 1377 (9th
Cir. 1993),1 and find none. The Florida Incident was certainly relevant: it provided
context for the government’s investigation of Livdahl and, later, appellants, see
United States v. Daly, 974 F.2d 1215, 1217 (9th Cir. 1992) (“A jury is entitled to
know the circumstances and background of a criminal charge.”), as well as critical
background for testimony regarding appellants’ “concealment . . . and related
conduct [that we]re admissible as evidence of consciousness of guilt, and thus of
1
Appellants did not object to this evidence until day five of trial, and even
then only objected on relevance grounds. Appellants never mentioned Rule 403 or
the danger of unfair prejudice, confusion, or misleading the jury. See United States
v. Tarazon, 989 F.2d 1045, 1053 (9th Cir. 1993).
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guilt itself.” Marcoux v. United States, 405 F.2d 719, 721 (9th Cir. 1968)
(quotation marks omitted); see also United States v. Jaramillo-Suarez, 950 F.2d
1378, 1384-85 (9th Cir. 1991). Moreover, the danger of unfair prejudice from
testimony about the Florida Incident was minimized because the jury was
repeatedly told that TRItox was not the substance involved. Finally, even if the
district court erred in admitting evidence of the Florida Incident, it did not plainly
err in doing so given the overwhelming evidence of guilt at appellants’ trial. See
United States v. Pino-Noriega, 189 F.3d 1089, 1097 (9th Cir. 1999).
The district court refused to allow Stephen Seldon to testify that certain
checks (1) made out to cash, (2) signed by Deborah Seldon, and (3) with blank
“memo” lines, were used to purchase Botox unless he could first testify that he had
personal knowledge of how each individual check was used. This did not violate
appellants’ Sixth Amendment rights, as the district court was simply applying the
personal knowledge requirement of Federal Rule of Evidence 602. See United
States v. Perkins, 937 F.2d 1397, 1401 (9th Cir. 1991) (“[I]n the exercise of th[e
fundamental right to present a defense], the accused . . . must comply with
established rules of procedure and evidence designed to assure both fairness and
reliability in the ascertainment of guilt and innocence.” (quotation marks omitted)).
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There was sufficient evidence to convict appellants of misbranding a drug
while held for sale under 21 U.S.C. § 331(k). “The vendor’s intent is the key
element” of the definition of “drug” under § 331(k), and “[t]his intent may be
derived or inferred from labeling, promotional material, advertising, or any other
relevant source.” United States v. Storage Spaces Designated Nos. “8” & “49”,
777 F.2d 1363, 1366 (9th Cir. 1985). Here, there was testimonial and documentary
evidence that appellants represented that they were injecting genuine Botox into
patients after October 13, 2003, and that appellants intended to use this substance
for the therapeutic treatment of frown lines. A rational trier of fact could have
concluded that this evidence established beyond a reasonable doubt that TRItox
was a “drug” within the meaning of § 331(k).
Finally, the district court did not err in calculating appellants’ range under
the Sentencing Guidelines. The record of the sentencing hearing establishes that
the district court did not rely on the jury with respect to amount of loss and number
of victims, but in fact made its own findings with respect to these sentencing
enhancements.
AFFIRMED.
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