FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10022
Plaintiff-Appellee,
v. DC No.
1:08 cr 01-ARM 2
LUIS KAIPAT PELISAMEN,
OPINION
Defendant-Appellant.
Appeal from the District Court
for the Northern Mariana Islands
Alex R. Munson, Chief District Judge, Presiding
Argued and Submitted
February 17, 2011—Honolulu, Hawaii
Filed April 13, 2011
Before: A. Wallace Tashima, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Tashima
5011
5014 UNITED STATES v. PELISAMEN
COUNSEL
Douglas Cushnie, Esq., Saipan, MP, for the appellant
UNITED STATES v. PELISAMEN 5015
Kirk W. Schuler, Esq., Assistant United States Attorney, Sai-
pan, MP, for the appellee
OPINION
TASHIMA, Circuit Judge:
The United States Supreme Court has recently held that the
offense of honest-services fraud codified at 18 U.S.C. § 1346
is unconstitutionally vague when applied to conduct other
than bribery and kickbacks. Skilling v. United States, 130
S.Ct. 2896, 2931 (2010). In this case, we must decide whether
a conviction for wire fraud remains valid where the language
of the indictment and the evidence offered by the government
support a “money or property” theory of fraud, where the jury
was instructed on both a “money or property” theory and an
honest-services theory, and where the jury returned a special
verdict form indicating that it had convicted the defendant on
both theories. We hold that the “money or property” fraud
conviction remains valid.
I. BACKGROUND
Defendant-Appellant Luis Pelisamen (“Defendant”), was
convicted of wire fraud in connection with the unauthorized
removal of funds from his grandmother’s estate, of which he
was the administrator. Rita Kaipat (“Rita”), Defendant’s
grandmother, died in 1959. Her estate included a parcel of
real property that was taken in eminent domain by the Mari-
anas Public Land Authority (“MPLA”), without compensa-
tion, in 1991 or 1992. In 1994, the Superior Court for the
Commonwealth of the Northern Mariana Islands (“Superior
Court”) determined that this property was actually held by
Rita as customary trustee for herself and the other heirs of
5016 UNITED STATES v. PELISAMEN
Vicenta Kaipat (“Vicenta”), presumably Rita’s mother, but
possibly her stepmother or other relative.1
In December 2003, Defendant was appointed administrator
of Rita’s estate. After Defendant’s appointment, he and his
attorney at the time, Timothy Bellas (“Bellas”), negotiated
with the MPLA for the overdue compensation for the land
that had been taken in eminent domain. Following an initial
offer of $100,000, Defendant succeeded in securing compen-
sation in the significantly higher amount of $4.4 million. In
May 2005, the $4.4 million in compensation was received
from the MPLA and deposited into an account at the Bank of
Guam that had been established by Bellas in the name of the
estate. That fall, the Superior Court issued a Partial Decree of
Distribution for Vicenta’s estate, which divided the $4.4 mil-
lion award three ways, with approximately $1.365 million
going to the estate of Rita (Defendant’s grandmother) and
$1.365 million going to each of the estates of two other heirs
of Vicenta. The Superior Court also awarded Defendant
$161,500 in fees for his services as administrator of the estate.
Prior to the issuance of that decree, Defendant had termi-
nated Bellas as his attorney and hired Joseph Arriola
(“Arriola”) to replace him. Bellas controlled the account that
held the $4.4 million in Vicenta’s estate and was responsible
for distributing the one-third shares to each of Vicenta’s heirs.
Bellas established a new bank account at the Bank of Guam
to hold the $1.365 million due to Rita’s estate and gave
Defendant’s new attorney Arriola access to those funds by
adding him as a signatory to that account. In November 2005,
Arriola depleted that account by obtaining a cashier’s check
for the funds in Rita’s estate (now increased to $1.377 mil-
lion, including accumulated interest). The request for the
cashier’s check that Arriola submitted to the Bank of Guam
included an acknowledgment and consent signed by Defen-
1
Defendant disputes that Vicenta was actually Rita’s mother, but that
question is of no import to our decision.
UNITED STATES v. PELISAMEN 5017
dant. The Bank of Guam then initiated a wire transfer of those
funds to a new account at the Bank of Hawaii that had been
set up by Arriola. Arriola added Defendant as a signatory to
this new account shortly after it was established.
Per a Superior Court order issued in April 2006, Rita had
five heirs, including Defendant’s mother, each of whom was
entitled to approximately $273,000. The $273,000 due to
Defendant’s mother was subject to further division between
her five heirs, one of whom was Defendant. Thus, Defendant
ultimately was entitled to an inheritance of $54,682. Between
December 2005 and May 2006, however, Defendant and
Arriola removed a total of $625,775 from Rita’s estate, by
writing a series of checks drawn on the Bank of Hawaii
account that were signed by both of them. Checks totaling
$348,500 were written to Defendant. Another $20,075 was
taken out of the estate’s account to pay a car dealership for a
2005 Nissan Frontier that Defendant had purchased. Checks
totaling an additional $38,000 were written to Defendant’s
wife, and another $219,200 was given to Arriola.
In January 2008, both Defendant and Arriola were indicted
of one count of conspiracy to commit wire fraud, one count
of wire fraud, one count of conspiracy to commit money laun-
dering, and two counts of money laundering.2 Defendant was
convicted on all counts.3 After his motion for a new trial was
denied, the district court sentenced Defendant to sixty
months’ imprisonment on each count, to be served concur-
rently, plus restitution in the amount of $626,775. Defendant
timely appealed.
2
The money laundering charges were based on the issuance of two sepa-
rate checks to the car dealership for Defendant’s new car, as described
above.
3
Defendant was tried twice, his first trial having ended in a mistrial due
to a hung jury.
5018 UNITED STATES v. PELISAMEN
II. ANALYSIS
A. Jurisdiction
We have jurisdiction pursuant to 28 U.S.C. § 1291 (grant-
ing jurisdiction over appeals from all final decisions of the
District Court of Guam), and 48 U.S.C. § 1824 (applying
“[t]hose portions of Title 28 which apply to . . . the District
Court of Guam” to the District Court for the Northern Mari-
ana Islands).
B. The Impact of Skilling
The indictment charged Defendant with the commission of
wire fraud in violation of 18 U.S.C. § 1343 and specified that
such wire fraud was for the purposes of “obtaining money and
property.” The indictment does not mention 18 U.S.C. § 1346,
which provides that the behavior punishable under § 1343
includes a scheme or artifice “to deprive another of the intan-
gible right of honest services.” Nonetheless, the district judge
instructed the jury that it could convict Defendant if it found
that he had either (1) “defrauded the heirs of the Estate of Rita
Kaipat,” or (2) “deprived the heirs . . . of their right to honest
services,” or (3) done both. The verdict form permitted a con-
viction on the wire fraud charge if the jury found Defendant
guilty of a scheme or plan to defraud the heirs “and/or” a
scheme or plan to deprive them of honest services. The jury
checked the boxes for both forms of fraud.
After Defendant had been convicted, the Supreme Court
decided Skilling, in which it held that the honest-services
fraud codified in 18 U.S.C. § 1346 is unconstitutionally vague
when applied to conduct other than bribery and kickbacks.
Defendant now argues that the holding in Skilling renders the
jury’s verdict constitutionally infirm.
1. Standard of Review
The proper standard of review for this claim merits some
discussion. Defendant did not object to the jury instructions
UNITED STATES v. PELISAMEN 5019
in the district court. Generally, a failure to object to jury
instructions means that appellate courts may review the
instructions only for “plain error that affects substantial
rights.” Fed. R. Crim. P. 52(b); see Fed. R. Crim. P. 30(d).
The plain-error standard applies even if, as is the case here,
there were no legal grounds for challenging the instructions at
the time they were given, but such legal grounds have since
arisen due to a new rule of law arising between the time of
conviction and the time of appeal. See Johnson v. United
States, 520 U.S. 461, 464-68 (1997). The plain-error standard
of review dictates that reversal is warranted only where there
has been (1) error; (2) that is plain; (3) that affects substantial
rights; and (4) where the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. at
466-67; United States v. Olano, 507 U.S. 725, 732 (1993);
United States v. Davenport, 519 F.3d 940, 943 (9th Cir.
2008).
Generally, the defendant bears the burden of persuasion on
the third prong (affects substantial rights) of the plain-error
test. See Olano, 507 U.S. at 741. Defendant argues, however,
that the burden of persuasion shifts to the prosecution when,
as is true in this case, the error was not clear at the time of the
conviction, but a supervening decision renders it so by the
time of appeal. The Second Circuit has held that the burden
does shift in these sorts of cases. United States v. Viola, 35
F.3d 37, 42 (2d Cir. 1994), abrogated on other grounds by
Salinas v. United States, 522 U.S. 52 (1997).
This circuit has not adopted the Viola burden-shifting rule
and contrary to Defendant’s assertion, the framework has not
been adopted in other circuits either. See United States v.
Gonzalez-Huerta, 403 F.3d 727, 734-35 (10th Cir. 2005) (not-
ing that the Supreme Court in Johnson had an opportunity to
apply and endorse the Viola “presumed prejudice” rule and
did not do so); United States v. Kramer, 73 F.3d 1067, 1074
n.17 (11th Cir. 1996) (declining to follow Viola); see also
Lowery v. United States, 3 A.3d 1169, 1174 (D.C. 2010)
5020 UNITED STATES v. PELISAMEN
(describing Viola as “one exception of uncertain authority” to
the rule that defendant bears the burden of persuasion on prej-
udice). Moreover, the Second Circuit itself has acknowledged
that the Supreme Court may have implicitly overruled Viola
by not shifting the burden in Johnson, which also involved a
new rule of law rendering jury instructions invalid after con-
viction, but before appeal. See United States v. Williams, 399
F.3d 450, 457 n.7 (2d Cir. 2005).
We need not decide who bears the burden of persuasion in
circumstances such as in this case where there has been an
intervening decision between the time of conviction and the
time of appeal. As we explain below, we are confident that
Defendant’s substantial rights were not affected under either
standard, and that the error did not seriously affect the fair-
ness, integrity, or public reputation of judicial proceedings.
2. Merits
[1] As noted, the Supreme Court held in Skilling that a
defendant may not be convicted of honest-services fraud,
except in cases involving bribes or kickbacks. 130 S.Ct. at
2931. Thus, Defendant argues that the first two prongs of the
plain error test are easily met. The government argues, how-
ever, that the district court in this case committed no error
because Arriola received kickbacks from Defendant for con-
spiring with him to steal money from Rita’s estate. We reject
this argument. Black’s Law Dictionary defines a “kickback”
as a “return of a portion of a monetary sum received, esp. as
a result of coercion or a secret agreement.” Black’s Law Dic-
tionary (9th ed. 2009) (emphasis added). The indictment
nowhere mentions the term kickback or the concept of Defen-
dant redirecting any funds to Arriola once he had received
them. Moreover, Defendant never returned any money to
Arriola because he never received any money from him. All
of the stolen money was taken from Rita’s estate. The govern-
ment’s case has always been that Defendant and Arriola acted
together to withdraw funds that belonged to Rita’s estate and
UNITED STATES v. PELISAMEN 5021
its heirs. In contrast, the paradigmatic kickback is made “for
the purpose of improperly obtaining or rewarding favorable
treatment” in some area (e.g., government contracts). 41
U.S.C. § 52(2). The Supreme Court’s analysis in Skilling
strongly suggests that what it meant by “kickbacks” was pre-
cisely this paradigmatic situation. 130 S.Ct. at 2927, 2930-31.
[2] As there were no bribes or kickbacks alleged, the incor-
poration of honest-services fraud into the jury instructions and
jury verdict form was plainly erroneous under Skilling. See
Johnson, 520 U.S. at 467-68. Therefore the first two prongs
of the plain-error test are met.
The next question is whether the error affected substantial
rights, which in most cases is an inquiry into whether it was
“prejudicial” — that is, whether it “affected the outcome of
the [trial] court proceedings.” Olano, 507 U.S. at 734.4 We
answer that question in the negative. Defendant’s wire fraud
conviction is not dependent on his conviction under an
honest-services theory.
[3] As the Supreme Court observed in Skilling, the crime
of honest-services fraud was initially created by courts to
cover situations in which “the victim’s loss of money or prop-
erty [did not supply] the defendant’s gain,” 130 S.Ct. at 2926
— in other words, to cover cases of fraud that are more com-
plex or subtle than those in which the defendant steals money
or tangible property from the victims. This is clearly not such
a case. Here, the allegation is that Defendant’s actions directly
deprived Rita’s other heirs of their money. The district court
instructed the jury that they must convict if they found either
that Defendant had “defrauded” the heirs, or that he had “de-
prived the heirs . . . of their right to honest services,” or that
he had done both. The instructions do not clarify that “de-
4
Certain errors may affect substantial rights without being prejudicial,
see, e.g., Olano, 507 U.S. at 735, but Defendant does not argue that this
error falls into that category.
5022 UNITED STATES v. PELISAMEN
frauding” must involve the taking of money or property from
the victims. However, the alleged appropriation of the vic-
tims’ money was implied in this instruction, given that the
entire basis of the indictment was that Defendant had helped
himself to money that did not belong to him.
[4] The district court also gave the jury a special verdict
form that asked the jury to specify the theory of liability under
which it had convicted Defendant by marking a line next to
the jury’s chosen theory or theories. The jury form provided:
If you voted guilty, indicate what theory or theories
of liability you relied upon, as described in Jury
Instruction No. 15:
____ Scheme or plan to defraud the heirs of the
Estate and/or
____ Scheme or plan to deprive the heirs of the
Estate of their honest services.
The jury checked both lines. This choice clearly indicates that
the conviction was based on a valid “money or property” the-
ory of wire fraud, as well as the invalid “honest services” the-
ory, and, therefore, remains valid. See Hedgpeth v. Pulido,
129 S.Ct. 530, 532 (2008) (per curiam) (“An instructional
error arising in the context of multiple theories of guilt [does
not] vitiate [ ] all the jury’s findings . . . .”); cf. Yates v.
United States, 354 U.S. 298, 312 (1957) (a verdict may be set
aside “where the verdict is supportable on one ground, but not
on another, and it is impossible to tell which ground the jury
selected”) (emphasis added), overruled on other grounds by
Burks v. United States, 437 U.S. 1 (1978).
Black v. United States, 130 S.Ct. 2963 (2010), which the
Court decided on the same day as Skilling, provides further
guidance on how to address this issue. In Black, the govern-
ment had similarly argued alternative theories of money-or-
UNITED STATES v. PELISAMEN 5023
property fraud and honest-services fraud. Unlike in this case,
however, only a general verdict form was provided to the
jury, which made it impossible to discern the theory on which
it convicted the defendant. See 130 S.Ct. at 2966. The case
was remanded by the Court to the Seventh Circuit, which con-
cluded that, notwithstanding the general verdict, the fraud
convictions would remain valid if it was “not open to reason-
able doubt that a reasonable jury would have convicted [the
defendants] of pecuniary fraud.” United States v. Black, 625
F.3d 386, 388 (7th Cir. 2010). This test is met here. The
indictment focuses on how Defendant and Arriola worked
together to take money from Rita’s estate. A key exhibit relied
upon by the government shows the amounts of money to
which the heirs of Rita were entitled and compares those
amounts to amounts actually received or receivable after
Defendant’s and Arriola’s withdrawals. And, most tellingly,
the special verdict form indicates that the jury did convict on
the basis of a theory other than honest-services fraud.5
[5] Under the fourth prong of the plain-error test, we may
reverse the conviction only if the error seriously affects the
fairness, integrity, or public reputation of judicial proceed-
ings. It is true that the use of the term “defraud” in the jury
instructions and jury verdict form without a reference to
money or property is less than ideal. But it does not tilt the
equities in favor of reversal, given how obvious it is that this
is a case of pecuniary fraud. The Supreme Court’s holding in
Skilling was intended to foreclose as unconstitutional convic-
tions for fraud based on acts such as undisclosed self-dealing
5
In the wake of Skilling, several district courts have also considered
cases involving special verdict forms providing for conviction on either a
pecuniary fraud theory or an honest-services theory, similar to that used
here. Those courts have concluded, as we do here, that convictions for
mail or wire fraud remain valid, as long as the special verdict form shows
that the jury found the defendant guilty on the pecuniary fraud theory.
United States v. Muoghalu, 2010 WL 3184178, at *11 n.3 (N.D. Ill. Aug.
9, 2010); United States v. Allen, 2010 WL 2813767, at *2 (N.D. Ind., Jul.
15, 2010).
5024 UNITED STATES v. PELISAMEN
or conflicts of interest. Skilling, 130 S.Ct. at 2932. The Court
certainly did not intend for that holding to call into question
convictions clearly based on the theft of money, such as in
this case.
[6] Because the error did not affect Defendant’s substantial
rights, nor did it affect the fairness, integrity, or public reputa-
tion of judicial proceedings, there was no “plain error that
affect[ed Defendant’s] substantial rights.” Fed. R. Crim. P.
52(b).
C. Defendant’s Remaining Contentions
We conclude that the other bases of Defendant’s appeal are
without merit.
1. Presentation of false testimony
Defendant’s motion for a new trial was premised in part on
the assertion that the government presented false testimony by
Defendant’s former attorney Bellas. We review the district
court’s denial of that motion for abuse of discretion. See
United States v. Moses, 496 F.3d 984, 987 (9th Cir. 2007).
The district court should have granted a new trial if: (1) the
prosecution actually presented false testimony; (2) the prose-
cution knew or should have known that the testimony was
false; and (3) the false testimony was material to the outcome
of the trial. See Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir.
2010).
[7] Here, Bellas’ testimony does not rise to the level of
perjury, nor do we find that the government knew or should
have known that it was false. At trial, Bellas testified that, in
September 2005, he had transferred the one-third share of
Vicenta’s estate that belonged to Rita’s estate to Defendant’s
control by personally handing a check to Arriola in a parking
lot. In fact, however, bank records indicate that Bellas actu-
ally created a new account in the name of Rita’s estate at the
UNITED STATES v. PELISAMEN 5025
Bank of Guam, with both himself and Arriola as signatories,
and deposited the money into a time certificate of deposit in
this account. Bellas was testifying in June 2009 about admin-
istrative matters that he had handled in September 2005 —
almost four years earlier. His testimony regarding the transfer
of funds was frequently qualified by the phrases “to my recol-
lection” or “[m]y recollection is . . .”, and he admitted that he
did not remember exactly when the transfer occurred. The
government theorizes, quite plausibly, that what Bellas was
remembering was handing Arriola not a check but the time
certificate of deposit into which he had placed Rita’s share of
the Vicenta estate. The district court’s implicit conclusion that
Bellas did not intentionally perjure himself is therefore well-
supported.
It is also highly unlikely that the government knew or
should have known that it was offering false testimony. The
documents establishing that the funds were moved not by
check, but by the creation of a new account, were presented
into evidence only when the defense called as its witness a
vice president of the Bank of Guam, who delivered those doc-
uments in response to a defense subpoena. When those docu-
ments were presented, the government’s attorney protested
that he had just seen them for the first time “five minutes
ago,” and Defendant’s attorney also stated that this was his
first time seeing them. Nothing in the record supports an
inference that the government knew that Bellas’ testimony
about how the money transfer was made was “false.”
2. Brady violation
Defendant also makes the related argument that he is enti-
tled to a new trial because the government failed to disclose
the documents showing that Bellas’ account of how he trans-
ferred the money to Arriola was incorrect and thereby vio-
lated the rule, set forth in Brady v. Maryland, 373 U.S. 83
(1963), that “the suppression by the prosecution of evidence
favorable to an accused . . . violates due process where the
5026 UNITED STATES v. PELISAMEN
evidence is material either to guilt or to punishment.” Id. at
87. The Brady rule applies to evidence impeaching a govern-
ment witness, as well as to evidence that is directly exculpa-
tory. See United States v. Bagley, 473 U.S. 667, 676 (1985).
While the standard of review for a trial court’s denial for
a motion for a new trial is generally abuse of discretion,
review is de novo when the asserted basis for a new trial is a
Brady violation. See United States v. Price, 566 F.3d 900, 907
(9th Cir. 2009); United States v. Howell, 231 F.3d 615, 624
(9th Cir. 2000). A Brady violation has occurred if: (1) the
government willfully or inadvertently suppressed; (2) evi-
dence favorable to the accused; and (3) prejudice ensued. See
Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Hein, 601
F.3d at 906. The suppression of evidence need not have been
knowing or negligent behavior on the part of the government.
See, e.g., id. But the evidence must have been suppressed. The
defendant “bears the initial burden of producing some evi-
dence to support an inference that the government possessed
or knew about” the Brady material. Price, 566 F.3d at 910.
[8] Defendant has not met that initial burden here. As dis-
cussed above, the record clearly indicates that both the gov-
ernment and Defendant’s attorney were surprised by the
disclosure at trial of the bank records indicating that Bellas’
account of how the money got from him to Arriola was inac-
curate. Nothing in the record suggests that these records were
possessed by or known to any agent of the government at any
point before Bellas testified. Rather, it was Defendant who
possessed the records and introduced them into evidence at
trial.
3. Sufficiency of evidence
Defendant argues that the government failed to prove the
elements of wire fraud, which is the predicate crime to his
money laundering conviction. We review the district court’s
denial of Defendant’s motion for judgment of acquittal for
UNITED STATES v. PELISAMEN 5027
plain error. See United States v. Lowry, 512 F.3d 1194, 1198
n.3 (9th Cir. 2008).6
Defendant was convicted of wire fraud in violation of 18
U.S.C. § 1343. The elements of wire fraud are: (1) the exis-
tence of a scheme to defraud; (2) the use of wire, radio, or
television to further the scheme; and (3) specific intent to
defraud. See Sullivan, 522 F.3d at 974. Defendant’s signature
appears above Arriola’s on virtually all of the checks that
were written to himself, to his wife, to Arriola, and to the car
dealership out of the money in Rita’s estate. The wire transfer
affording federal criminal jurisdiction over the case is the
November 2005 transfer of the $1.37 million that belonged to
Rita’s estate from the account established by Bellas at the
6
Ordinarily, a claim that a conviction is not supported by sufficient evi-
dence is reviewed by this court de novo, see United States v. Sullivan, 522
F.3d 967, 974 (9th Cir. 2008), and the conviction is upheld if, “viewing
the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond
a reasonable doubt,” id. (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). However, the claim is subject to de novo review only if the defen-
dant has adequately preserved the issue for appeal. See Lowry, 512 F.3d
at 1198 n.3.
Here, Defendant moved for a judgment of acquittal under Fed. R. Crim.
P. 29(a) at the close of the government’s evidence, but he did not make
an additional Rule 29 motion at the close of all evidence, nor was the issue
raised in his motion for a new trial. The weight of authority in this circuit
is that a Rule 29 motion made at the close of the government’s evidence
must be renewed at the end of trial or in a written post-trial motion, or else
plain error review applies. See United States v. Gonzalez, 528 F.3d 1207,
1210-11 (9th Cir. 2008); United States v. Alvarez-Valenzuela, 231 F.3d
1198, 1200-01 (9th Cir. 2000); United States v. Vizcarra-Martinez, 66
F.3d 1006, 1010 (9th Cir. 1995). But see United States v. Esquivel-Ortega,
484 F.3d 1221, 1224-25 (9th Cir. 2007); United States v. Stewart, 420
F.3d 1007, 1014 (9th Cir. 2005). In any event, the distinction is largely
academic, given that, whether review is de novo or for plain error, we
must give great deference to the jury verdict and “must affirm if any ratio-
nal trier of fact could have found the evidence sufficient.” Vizcarra-
Martinez, 66 F.3d at 1010.
5028 UNITED STATES v. PELISAMEN
Bank of Guam to the new account at the Bank of Hawaii.7
The transfer was initiated by a letter to the Bank of Guam
from Arriola requesting release of the funds; that letter
described “consultation with my client Luis K. Pelisamen”
and bore Defendant’s signature on an acknowledgment and
consent.
[9] “It is settled law that intent to defraud may be estab-
lished by circumstantial evidence.” United States v. Rogers,
321 F.3d 1226, 1230 (9th Cir. 2003). The conclusion that
Defendant intended to defraud the estate is supported by suffi-
cient circumstantial evidence: the series of checks bearing his
and Arriola’s signatures, and phone records indicating that
Defendant and Arriola were frequently in touch by phone on
the days when many of the checks were written.
[10] Defendant’s conviction for conspiracy to commit wire
fraud required the jury to find: (1) an agreement to engage in
criminal activity, which need not be explicit; (2) one or more
overt acts taken to implement the agreement; and (3) requisite
intent to commit the underlying offense. See Sullivan, 522
F.3d at 976. Only one overt act in furtherance of the agree-
ment is required, and the jury found that Defendant had
engaged in “check issuance” in support of the conspiracy. The
telephone calls and joint signatures on the check are sufficient
evidence of an agreement between Defendant and Arriola
and, as noted above, of specific intent to defraud.
7
To confer jurisdiction under the wire fraud statute, the wire transfer
need not have been “an essential part of the . . . scheme” to defraud; it
“need only be made for the purpose of executing the scheme.” United
States v. Garner, 663 F.2d 834, 838 (9th Cir. 1981). Unlike the Bank of
Guam account, the Bank of Hawaii account was a checking account from
which Defendant and Arriola could freely withdraw money, and with-
drawals from the account began approximately two weeks after the
account was established. A rational trier of fact could have found that the
wire transfer establishing this account was made for the purpose of
advancing the fraudulent scheme.
UNITED STATES v. PELISAMEN 5029
4. Admission of evidence
Defendant argues that the district court erred in admitting
three pieces of evidence at trial: an audio/video recording of
a telephone interview with Defendant that was broadcast by
a local television station; an audio tape of a proceeding in the
Superior Court; and a chart showing the division of Vicenta’s
estate. We review the district court’s evidentiary rulings for
abuse of discretion. See United States v. Cherer, 513 F.3d
1150, 1157 (9th Cir. 2008).
[11] Defendant’s counsel objected at trial to the admission
of the television broadcast on the grounds that it was hearsay,
see Fed. R. Evid. 801, 802, and that it did not qualify under
the business records exception to the hearsay rule, see Fed. R.
Evid. 803(6), because the recording was not made in accor-
dance with the television station’s policy requiring that a sub-
ject give his consent for an interview to be recorded. The
district court did not abuse its discretion in overruling the
objection. The recording was admitted because it contained
Defendant’s statement to the effect that the money in the
estate was gone. That statement is not hearsay because it is
offered against Defendant and is his own statement. See Fed.
R. Evid. 801(d)(2). Because the statement is not hearsay, the
question of whether or not it qualifies under the “business
records” exception to the hearsay rule is irrelevant.
[12] The audiotape of the Superior Court proceeding was
presented as impeachment material, to show that Defendant,
contrary to his own assertion, had been present at a hearing
at which the Superior Court judge instructed him that he could
not use the funds in Rita’s estate to pay Arriola’s legal fees.
Defendant argues that the tape should not have been admitted
because the government had previously told his counsel that
it would not be used, and because the government should
have presented the tape in its case in chief. But counsel for the
government stated that the tape had been provided to Defen-
dant’s counsel prior to the trial with the promise that it would
5030 UNITED STATES v. PELISAMEN
not be used in the government’s case in chief, but with no
assurance that it would not be used as impeachment evidence.
Defendant does not dispute this account.
The government also presented a diagram entitled “Distri-
bution of the Estates,” which shows the heirs of Vicenta and
of Rita, the amounts to which each heir was entitled pursuant
to the Superior Court order, and the amounts actually received
by each heir. Defendant asserts that the diagram is a “genealo-
gy” and lacks foundation both on the issue of the family rela-
tions depicted therein and on the issue of the distribution of
funds listed therein.
[13] Defendant’s assertion that the diagram is intended as
a genealogy is unsustainable. In fact, the diagram depicts rela-
tions of heirship, not kinship, as determined by the Superior
Court. The Superior Court’s rulings on the question of
Vicenta’s and Rita’s heirs are sufficient foundation for the
diagram. As for the distribution of funds listed therein, the
government called an investigator for the Public Auditor’s
Office in Saipan to testify, based on examination of the docu-
mentary evidence, as to the amounts of money that were owed
to and actually received by the various heirs. The investiga-
tor’s testimony sets forth precisely the figures for the division
of Rita’s estate that are set forth on the diagram. See Fed. R.
Evid. 901(b)(1) (evidence may be authenticated by the testi-
mony of a witness with knowledge of the matter in question);
Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 533 (9th Cir.
2011) (noting that a document can be authenticated by numer-
ous “alternative means” (citations and footnote omitted));
United States v. Workinger, 90 F.3d 1409, 1415-16 (9th Cir.
1996). The numbers given for the division of Vicenta’s estate
are supported by documents filed with the Superior Court as
well as by other supporting documentation in the record.8
8
Although not pressed by the government, the diagram was also proba-
bly admissible as a summary under Fed. R. Evid. 1006.
UNITED STATES v. PELISAMEN 5031
III. Conclusion
For the reasons set forth above, the judgment of the district
court is AFFIRMED.