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NOT FOR PUBLICATION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. 16-10316
Plaintiff-Appellee, D.C. No.
2:12-cr-00463-JCM-VCF-3
v.
JACQUELINE LOUISA GENTLE, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-10318
Plaintiff-Appellee, D.C. No.
2:12-cr-00463-JCM-VCF-5
v.
CAROLYN SHELMADINE WILLIS-
CASEY,
Defendant-Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
UNITED STATES OF AMERICA, No. 16-10330
Plaintiff-Appellee, D.C. No.
2:12-cr-00463-JCM-VCF-1
v.
FREDERICK VERNON WILLIAMS,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted February 7, 2018
San Francisco, California
Before: THOMAS, Chief Judge, and TASHIMA and CHRISTEN, Circuit Judges.
Defendants-Appellants Jacqueline Gentle, Carolyn Willis-Casey, and
Frederick Williams appeal their convictions and sentences. We affirm all three
convictions. We also affirm Williams’ and Willis-Casey’s sentences. We vacate
Gentle’s sentence and remand for resentencing.
1. The district court did not err by denying Williams’ motion for a
Franks hearing. Franks v. Delaware, 438 U.S. 154 (1978). Contrary to the
government’s suggestion at oral argument, if Agent Roland knew the cooperating
witness had a motive to lie, he was obligated to inform the magistrate judge. See
United States v. Ruiz, 758 F.3d 1144, 1149 (9th Cir. 2014). But Williams did not
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make a “substantial preliminary showing” that Roland “knowingly and
intentionally, or with reckless disregard for the truth” withheld any such
information when he sought a warrant to search the Soledad Way home, nor did he
establish that this disclosure would have changed the court’s probable cause
analysis. See Franks, 438 U.S. at 155–56.
The district court also did not err by denying Williams’ motion to suppress
evidence seized at Soledad Way. We discern no clear error in the magistrate
judge’s finding of probable cause to issue a search warrant given the information
connecting Williams to the property and the nature of the evidence sought. See
United States v. Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011).
Finally, the district court did not err by ruling on Williams’ motion to
suppress without conducting an evidentiary hearing. Although we require such
hearings when the moving papers “show that there are contested issues of fact
relating to the lawfulness of a search,” United States v. Mejia, 69 F.3d 309, 318
(9th Cir. 1995), Williams identifies no such factual issues on appeal and focuses
instead on the legal significance of undisputed facts.
2. The district court did not abuse its discretion by denying Williams’
and Gentle’s motions to sever their trials. “[T]here is a strong preference in the
federal system for joint trials,” and we conclude that a joint trial here was not
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“manifestly prejudicial.” United States v. Decoud, 456 F.3d 996, 1008–09 (9th
Cir. 2006). The district court instructed the jury to consider each Defendant’s guilt
separately, and the jury convicted each Defendant on some but not all counts. The
jury’s selective verdict indicates it was able to compartmentalize the evidence.
United States v. Stinson, 647 F.3d 1196, 1205 (9th Cir. 2011).
3. The district court did not abuse its discretion by declining to hold
several sidebars during trial, and the record does not support “an abiding
impression that the jury perceived an appearance of advocacy or partiality.”
United States v. Laurins, 857 F.2d 529, 537–38 (9th Cir. 1988). In addition, the
district court gave a curative instruction, which we have said may alleviate an
appearance of partiality. United States v. Scott, 642 F.3d 791, 800 (9th Cir. 2011).
Nor did the district court prevent Williams and Gentle from presenting their
defenses. “The right to present a defense is clearly fundamental,” but defendants
“must comply with established rules of procedure and evidence designed to assure
both fairness and reliability in the ascertainment of guilt and innocence.” United
States v. Waters, 627 F.3d 345, 354 (9th Cir. 2010) (citations omitted). As to
Gentle, the district court acted within its discretion by excluding the pretrial
hearing transcript and the Clark County Department of Family Services Report,
and we reject Gentle’s attempt to “constitutionalize” these evidentiary arguments.
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Id. at 353. Neither ruling prevented Gentle from presenting the substance of her
defense theory. See id. at 354. So too for Williams. His passing mention of
Nicole Shore while examining another witness does not establish that the district
court excluded Shore. Nor did the district court abuse its discretion by excluding
expert testimony from Professor Stevens. See Fed. R. Evid. 702(a). As with
Gentle, neither ruling prevented Williams from presenting the substance of his
defense theory. See Waters, 627 F.3d at 354.
Finally, the district court did not prevent Williams from cross-examining
Roland, Steve Zuelke, and James Buck. During Williams’ cross-examination of
each witness, the district court did not exclude areas of inquiry, but instead limited
the scope of questioning within given areas. See United States v. Larson, 495 F.3d
1094, 1101, 1103–04 (9th Cir. 2007) (en banc). As to Zuelke and Buck, the
district court acted within its discretion by limiting Williams’ questioning after the
interrogations became “repetitive” and “marginally relevant.” Id. at 1101. The
district court limited Williams’ recross of Roland about the Belizean vital statistics
office, but did not prevent Williams from following up on the topic when he called
Roland during his case-in-chief, and the court’s ruling did not leave the jury with
insufficient information to assess Roland’s credibility. See id. at 1103.
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4. The district court did not violate Williams’ or Gentle’s rights under
the Confrontation Clause. Government Exhibit 275 was testimonial given the
circumstances of its creation. See United States v. Rojas-Pedroza, 716 F.3d 1253,
1267 (9th Cir. 2013). But unlike in Bullcoming v. New Mexico, 564 U.S. 647,
661–62 (2011), the government’s witness in this case was no mere “surrogate” for
another person’s forensic analysis; she effectively “retest[ed]” the overpayment
amounts and then testified to the results of her own analysis. Id. at 666 (plurality
opinion).
We reject Gentle’s suggestion that the contents of her A-File were
testimonial because her A-File contained “adverse actions.” We review
Confrontation Clause challenges on a statement-by-statement (rather than
document-by-document) basis. Rojas-Pedroza, 716 F.3d at 1268. We have held
that some A-File contents, like warrants of removal, are not testimonial even
though they may be adverse to the subject’s interests. Id. Gentle identifies no
particular statements to which she takes exception.
5. We affirm the myriad evidentiary rulings that Defendants challenge
on appeal. The district court did not abuse its discretion by admitting Prudence
Swift’s passport application, the documents seized from Soledad Way, Denise
Williams’ welfare application or several bank records over Williams’ relevance
6
objections. The welfare application was relevant to Cordero Charles’ credibility
and the passport application was relevant because, among other reasons, Swift
could obtain a passport only as a consequence of Williams’ claim of citizenship.
The Soledad Way documents and bank records were conditionally admitted, and
Williams never moved to strike them. See Huddleston v. United States, 485 U.S.
681, 690 n.7 (1988). We review for plain error Williams’ arguments that this
evidence ran afoul of Rules 403 and 404(b) because he did not object on those
grounds at trial. See United States v. Archdale, 229 F.3d 861, 864 (9th Cir. 2000).
Williams does not argue that the challenged evidence affected his substantial
rights, so he has not carried his burden under plain error review. See United States
v. Olano, 507 U.S. 725, 734–35 (1993). The same is true of the evidence to which
Williams concedes he did not object below. On appeal, Williams argues that the
evidence should not have been admitted, but he does not articulate how its
admission affected his substantial rights. See id.
The district court also did not abuse its discretion by permitting some
evidence and testimony regarding Deon Gentle. Although the district court denied
Gentle’s motion in limine to exclude all evidence of Deon, the court did not give
the government carte blanche to introduce irrelevant information about him.
Deon’s 2006 passport application was relevant to Gentle’s knowledge of falsity.
7
The district court did not abuse its discretion by declining to strike
Government Exhibit 239 at Willis-Casey’s request after it was admitted without
objection. The IRS records custodian authenticated the exhibit and laid an
adequate foundation for its admission. The records custodian’s testimony that no
physical document underlies Government Exhibit 239 defeats Willis-Casey’s best
evidence rule objection. See Fed. R. Evid. 1001(d). Willis-Casey’s argument on
appeal focuses on whether Government Exhibit 239 was admissible as a business
record under Rule 803(6). Because she did not make this argument in the district
court, we review for plain error. See United States v. Hayat, 710 F.3d 875, 893–94
(9th Cir. 2013). We conclude that any error was not plain, given Willis-Casey’s
exclusive reliance on out-of-circuit authority.
Finally, the district court did not abuse its discretion by permitting the
government to question Charles about the welfare application on cross-
examination, see Fed. R. Evid. 611(b), or by permitting the government to ask
Buck about notices of monetary determination on redirect-examination. District
courts enjoy wide latitude in their control over the scope of witness examination,
see United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987), and Williams’
speculation about the government’s motives on redirect does not call into question
the district court’s exercise of its discretion.
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6. The district court did not permit a fatal variance between the
indictment and proof at trial as to Count 1. We are unable to see how any
inconsistency between “E. Williams” born in 1959 and “Eric Lee Williams” born
in 1958 affected Williams’ substantial rights. See United States v. Von Stoll, 726
F.2d 584, 587 (9th Cir. 1984).
Williams contends that Instruction 25, which gave the elements of Count 9,
constructively amended the indictment. Because Williams did not object to the
instruction, we review only for plain error. United States v. Hugs, 384 F.3d 762,
766 (9th Cir. 2004). Unlike the instruction in United States v. Ward, 747 F.3d
1184, 1191–92 (9th Cir. 2014), the instruction for Count 9, read in context,
required the jury to find a conspiracy to commit substantive mail fraud. See United
States v. Moran, 493 F.3d 1002, 1009 (9th Cir.) (“In evaluating jury instructions,
[w]e consider how the jury would have reasonably understood the challenged
instruction in the context of the instructions as a whole.” (internal quotations marks
omitted and alteration in original)). Given Moran, we conclude that even assuming
there was error, the error was not plain.
7. Sufficient evidence supports Defendants’ convictions. We review the
evidence in the light most favorable to the prosecution and ask whether any
9
rational trier of fact could have found the essential elements of each crime beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Williams’ convictions on Counts 2 and 8 are adequately supported. As to
Count 2, unlike in Smiley v. United States, 181 F.2d 505 (9th Cir. 1950), and
United States v. Karaouni, 379 F.3d 1139 (9th Cir. 2004), Williams’ claim of
citizenship could refer only to American citizenship in the context of the I-129
Petition. As to Count 8, we reject Williams’ suggestion that Nevada’s notary
division lacked good reason to inquire about his citizenship. See Nev. Rev. Stat.
§ 240.015(1)(a) (requiring notaries public to be United States citizens or lawful
permanent residents). Williams’ arguments regarding Counts 1 and 3 fail because
we reject his suppression and variance arguments. His arguments regarding
Counts 28 and 29 likewise fail; the jury could find beyond a reasonable doubt that
Williams carried out the scheme because he was the “representative payee” of his
mother’s benefits and “the money was sent to him.” Finally, Williams’ reliance on
United States v. Guido, 554 F. App’x 631 (9th Cir. 2014), is misplaced. Williams
does not find himself in the same position as the defendant in Guido, so we reject
his challenges to his convictions on Counts 30, 32, and 33.1
1
Moreover, as an unpublished Memorandum, Guido carries no
precedential force. See Ninth Cir. R. 36-3(a).
10
Gentle’s convictions are also supported by sufficient evidence. On appeal,
Gentle maintains her claim of innocent ignorance. She made the same claim
before the jury and it did not find her credible. “When the defendant elects to
testify, [s]he runs the risk that if disbelieved, the trier of fact may conclude that the
opposite of [her] testimony is the truth.” United States v. Kenny, 645 F.2d 1323,
1346 (9th Cir. 1981).
Finally, we affirm Willis-Casey’s conviction on Count 20. On appeal,
Willis-Casey argues her substantive mail fraud conviction cannot stand because no
evidence establishes that she caused anything to be mailed. We disagree. Buck
testified that Government Exhibit 31 and the related exhibits reflected the mailing
of notices of monetary determination. Willis-Casey objected to Buck’s testimony
after he gave it, but she did not move to strike his response and the jury was
instructed to consider “the sworn testimony of any witness.” Moreover,
Government Exhibit 32 taken alongside Zuelke’s testimony permits a reasonable
inference that such a notice was mailed.
8. We identify no errors that we nevertheless deem harmless, so the
cumulative error doctrine is inapplicable. Cf. United States v. Frederick, 78 F.3d
1370, 1381 (9th Cir. 1996) (applying the cumulative error doctrine where multiple
11
errors rendered a “balkanized, issue-by-issue” approach ineffective for analyzing
the overall impact of the errors).
9. Williams’ sentence is neither procedurally nor substantively
unreasonable. “We review the district court’s interpretation of the [U.S.
Sentencing] Guidelines de novo, the district court’s application of the Guidelines
to the facts of the case for abuse of discretion, and the district court’s factual
findings for clear error.” United States v. Treadwell, 593 F.3d 990, 999 (9th Cir.
2010). We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en
banc). The district court did not err by imposing a four-level enhancement under
U.S.S.G. § 3B1.1(a) because Williams’ fraud scheme was “otherwise extensive”
given its use of many unknowing outsiders. See U.S.S.G. § 3B1.1, cmt. n.3. We
are not left with a firm and definite conviction that the district court imposed a
substantively unreasonable sentence. See Ressam, 679 F.3d at 1086.
For the same reason, we conclude that Willis-Casey’s sentence is not
substantively unreasonable. See id. We also conclude that the district court did not
abuse its discretion when setting the amount of restitution it ordered Willis-Casey
to pay. The district court considered Willis-Casey’s individual characteristics and
her involvement in the scheme.
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We vacate Gentle’s sentence and remand for resentencing. As the
government acknowledges, the district court imposed a two-level enhancement for
obstruction of justice under U.S.S.G. § 3C1.1, but it did not make the required
findings to support such an enhancement. See United States v. Castro-Ponce, 770
F.3d 819, 823 (9th Cir. 2014). On remand, the district court should also consider
Gentle’s eligibility for an adjustment under U.S.S.G. § 3B1.2. See United States v.
Aguilar Diaz, No. 16-50102, 2018 WL 1220508, at *6 (9th Cir. 2018); United
States v. Quintero-Leyva, 823 F.3d 519, 523–24 (9th Cir. 2016). We express no
opinion on how the district court should decide the applicability of §§ 3B1.2 and
3C1.1 on remand.
We affirm all three Defendants’ convictions. We affirm Williams’ and
Willis-Casey’s sentences. We vacate Gentle’s sentence and remand for
resentencing.
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