FILED
NOT FOR PUBLICATION
MAR 22 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50121
Plaintiff-Appellee, D.C. No. 3:13-cr-03788-JM-1
v.
MEMORANDUM*
JUDITH ANN PAIXAO,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50122
Plaintiff-Appellee, D.C. No. 3:13-cr-03788-JM-2
v.
KEVIN A. LOMBARD,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted February 7, 2018
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER and HURWITZ, Circuit Judges, and KORMAN,** District
Judge.
A jury convicted Defendants Judith Paixao and Kevin Lombard of a number
of crimes relating to their misuse of funds belonging to the Wounded Marine
Careers Foundation ("WMCF"). We affirm.1
1. The government offered sufficient evidence in support of each of
Defendants’ convictions under 18 U.S.C. § 666(a)(1)(A). When viewed in the
light most favorable to the government, United States v. Overton, 573 F.3d 679,
685 (9th Cir. 2009), the evidence shows that Defendants unlawfully transferred
WMCF funds to their personal accounts. Defendants’ argument that the transfers
might have represented valid reimbursements is unavailing because (1) the
transfers were "rounded off," suggesting that they were not reimbursements, and
(2) the government "need not exclude every reasonable hypothesis consistent with
innocence," United States v. Miller, 688 F.2d 652, 663 (9th Cir. 1982).
2. Reviewing for plain error, United States v. Conti, 804 F.3d 977, 981 (9th
Cir. 2015), we hold that the district court did not err by failing to instruct the jury
**
The Honorable Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
1
In a concurrently filed opinion, we affirm with respect to a separate issue.
2
on the bona fide salary exception in 18 U.S.C. § 666(c) because Defendants were
not authorized to receive salaries when they withdrew funds from WMCF.
3. The district court did not err by sentencing Defendants on multiple counts
of violating 18 U.S.C. § 666(a)(1)(A). Like the federal mail fraud statute,
§ 666(a)(1)(A) permits a separate count for each illicit transfer. See United States
v. Vaughn, 797 F.2d 1485, 1493 (9th Cir. 1986) (holding that each mailing in
violation of the federal mail fraud statute constitutes a separate violation of the
statute).2
4. Reviewing for plain error, United States v. Gadson, 763 F.3d 1189, 1215
(9th Cir. 2014), we hold that the district court did not err in instructing the jury on
Pinkerton liability. We have upheld similarly flawed instructions on Pinkerton
liability. United States v. Moran, 493 F.3d 1002, 1009–10 (9th Cir. 2007) (per
curiam).
5. We decline to consider Defendants’ ineffective assistance of counsel
claim. "As a general rule, we do not review challenges to the effectiveness of
defense counsel on direct appeal." United States v. Liu, 731 F.3d 982, 995 (9th
Cir. 2013). No exception applies here. Id.
2
Defendants make several additional arguments that depend on the success
of their arguments about 18 U.S.C. § 666. Because Defendants’ convictions under
§ 666 withstand review, those claims necessarily fail.
3
5. The government offered sufficient evidence in support of Paixao’s
conviction under the federal mail fraud statute, 18 U.S.C. § 1341. Viewing the
evidence in the light most favorable to the government, United States v. Flyer, 633
F.3d 911, 917 (9th Cir. 2011), the evidence shows that Paixao repeatedly misled
WMCF’s donors before she received the Bob Woodruff Foundation’s contribution
through the mail. The evidence thus supports an inference that Paixao had already
devised a scheme to defraud WMCF’s donors at that time.
6. We reject Paixao’s "cumulative errors" argument because there appear to
have been, at most, only a few minor errors in Paixao’s trial. Parle v. Runnels, 505
F.3d 922, 927 (9th Cir. 2007).
AFFIRMED.
4
United States v. Judith Paixao
Combined Opinion