FILED
NOT FOR PUBLICATION JUL 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10000
Plaintiff - Appellee, D.C. No. 2:10-cr-00280-KJD-
GWF-4
v.
LINDA MARIE KOT, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted April 7, 2014
San Francisco, California
Before: SCHROEDER, LIPEZ**, and CALLAHAN, Circuit Judges.
I.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kermit V. Lipez, Senior Circuit Judge for the First
Circuit, sitting by designation.
Linda Marie Kot (“Kot”) challenges: (1) her conviction for mail fraud, wire
fraud, bank fraud and conspiracy to commit mail fraud, wire fraud, and bank fraud;
(2) her 2-level sentencing enhancement for relevant conduct; and (3) the district
court’s loss calculation of $2.5 to $7 million, resulting in an increase of 18 in the
base offense level. Kot’s convictions arose out of her alleged masterminding of a
scheme whereby she sold properties to a real estate trust (the “Trust”) – created by
Hugo Coutelin (“Coutelin”) and Michael Perry (“Perry”), and later joined by Jeff
Thomas (“Thomas”) – in exchange for brokerage commissions. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Kot’s evidentiary claims and other
objections are not persuasive; therefore we affirm her conviction and sentence.1
II.
A. Contrary to Kot’s assertions, there was sufficient evidence to support the
jury’s finding that her alleged falsehoods were material to the issuance of the bank
loans in question, and that the funds were under the custody and control of an
FDIC-insured institution. As to materiality, the jury heard testimony from
employees of the mortgage brokers/banking subsidiaries that absent the
falsifications provided by Kot the loans in question would not have been approved.
1
Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
2
Further, custody and control by an FDIC-insured institution was established
because: (1) the parties stipulated that Wells Fargo, Fremont and North Fork Bank
(“North Fork”) were federally insured institutions within the meaning of 18 U.S.C.
§ 1344; (2) the parties stipulated that for all sales in which North American Title
was the settlement agent, Wells Fargo was the funding bank; and (3) there was
testimony that North Fork Bank funded the loans underwritten by its subsidiary,
GreenPoint Mortgage Funding, Inc. (“GreenPoint”). Accordingly, viewed in the
light most favorable to the prosecution, a rational juror could have found the
elements of the crime beyond a reasonable doubt. United States v. Rizk, 660 F.3d
1125, 1134 (9th Cir. 2011).
B. The district court did not err in allowing testimony regarding other real
property transactions that were the subject of a dismissed indictment. The
admission of testimony by government witness Jeffrey Palladino (“Palladino”) and
defense witness Gary Krape (“Krape”) was not a Fifth Amendment violation
because Kot was not “held to answer” for any crimes not charged in the
Indictment. United States v. Shipsey, 190 F.3d 1081, 1085 (9th Cir. 1999).
Further, the evidence was admissible because it concerned events inextricably
intertwined with the charged offenses and therefore was necessary to the
government’s ability to offer a coherent and comprehensible story regarding the
3
crime’s commission. See United States v. Vizcarra-Martinez, 66 F.3d 1006,
1012-13 (9th Cir. 1995). In the alternative, the testimony was admissible as
evidence of other acts under Fed. R. Evid. 404(b) because it tended to prove
motive, intent, plan and knowledge, and refuted Kot’s claims of innocence and
mistake. United States v. Jackson, 84 F.3d 1154, 1159 (9th Cir. 1996). The
testimony helped establish that Kot had previously devised and executed the same
scheme with her friends and relatives, and sold properties she purchased in her
friends’ and relatives’ names to the Trust.
C. The district court did not err in permitting the term “straw buyers” to be
used at trial. The district court’s ruling that the term “straw buyer” was not unduly
prejudicial under Fed. R. Evid. 403 was not an abuse of discretion. Tennison v.
Circus Circus Enters., Inc., 244 F.3d 684, 688 (9th Cir. 2001). The district court
instructed the jury as to the term’s neutrality and stressed the jury’s role in
deciding whether a straw buyer relationship existed.
D. The prosecutor’s admitted error in asking Kot about the veracity of
government witnesses does not warrant reversal; nor did the government
improperly comment on the veracity of various witnesses in its closing argument.
Although “it[ is] black letter law that a prosecutor may not ask a defendant to
comment on the truthfulness of another witness,” the defendant must show
4
prejudice to warrant a new trial. United States v. Harrison, 585 F.3d 1155, 1158-
59 (9th Cir. 2009). Here, the evidence of Kot’s guilt – in the form of both exhibits
and testimony by numerous witnesses – was overwhelming. In addition, the
district court clearly instructed the jury that it should make its own judgment as to
the veracity of witnesses. Accordingly, there was no prejudice.
Further, the prosecutor’s use of the phrase “you know” and his immediate
self-correction during closing argument did not amount to vouching for witnesses.
There was no implication that he was making personal assurances or suggesting
that information not presented supported the witnesses’ testimony. See United
States v. Parker, 241 F.3d 1114, 1119 (9th Cir. 2001). The prosecutor permissibly
pointed out the discrepancies in testimony, and the jury was instructed to make its
own judgment as to the credibility of the witnesses. See Jackson, 84 F.3d at 1158.
Further, even if the comments were construed as vouching, they do not warrant
reversal because they “did not ‘seriously affect[ ] the fairness, integrity or public
reputation of judicial proceedings,’” given the abundance of the evidence. Id.
(alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
E. The district court did not err in not interviewing a juror regarding her
spouse’s communication with government witness Palladino. Upon learning from
the prosecution of the brief exchange between a man in the audience, who was a
5
juror’s husband, and government witness Palladino regarding their common
surname, the court interviewed the man and gave him a stern warning in the
presence of the prosecution and defense. Because Kot did not request any further
inquiry, the court’s actions are reviewed for plain error. United States v.
Velasquez-Carbona, 991 F.2d 574, 576 (9th Cir. 1993). Here, the communication
was completely unrelated to the case, and there is no evidence that the exchange
between the two was relayed to the juror. Contrary speculation is insufficient to
establish prejudice. See United States v. Yousef, 327 F.3d 56, 161 (2nd Cir. 2003).
Accordingly, there was no error, much less plain error.
F. The district court’s exclusion of the Suspicious Activity Report (“SAR”)
did not amount to a Brady/Giglio error.2 Suppression by the prosecution of
evidence favorable to an accused is a violation of due process “where the evidence
is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Here, the
prosecutor disclosed the SAR on the second day of trial, after Kot’s opening
statement made clear that she would argue, in part, that the mortgage brokers were
to blame for the false information provided on loan documents. Kot has not shown
2
Pursuant to 12 C.F.R. § 21.11, a SAR must be filed with the Financial
Crimes Enforcement Network of the Department of the Treasury by a national
bank in predefined situations that indicate possible violations of banking laws.
6
that the SAR was material to her guilt or innocence. In addition, although the court
did not allow the admission of the document itself, it ruled that Kot’s counsel could
question the relevant government witnesses about the SAR, which Kot’s counsel
declined to do. Accordingly, there was no due process violation.
G. The district court did not err in (1) enhancing Kot’s base offense level by
2 for relevant conduct, or (2) calculating a loss range of $2.5 to $7 million,
resulting in an increase of 18 in the base offense level. The Ninth Circuit reviews
the district court’s interpretation of the United States Sentencing Guidelines
(“U.S.S.G.” or the “Guidelines”) de novo, its application to the facts of a case for
abuse of discretion, and its factual findings for clear error. United States v.
Grissom, 525 F.3d 691, 696 (9th Cir. 2008). Here, the parties stipulated that the
loss range was $2.5 to $7 million (a fact), necessarily resulting in an increase of 18
in the base offense level. The district court’s acceptance of this figure was not
clear error. In addition, it was not an abuse of discretion for the district court to
apply a 2-level sentencing enhancement based on its independent judgment that
Kot’s conduct was more egregious than that of her co-conspirators and that she
intentionally testified falsely as to a material matter.
H. The asserted trial errors, as a cumulative whole, do not warrant reversal
for a new trial. Kot has raised only one possibly meritorious claim, that of the
7
prosecutor questioning her as to witnesses’ veracity, and that issue is insubstantial
in light of the overwhelming evidence against her. Parle v. Runnels, 505 F.3d 922,
927-28 (9th Cir. 2007). Accordingly, reversal is not warranted on the basis of
cumulative error.
III.
For the reasons stated above, we affirm Kot’s conviction and sentence.
8