United States v. James Kalfsbeek

FILED
NOT FOR PUBLICATION MAR 05 2012

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. 10-10139

Plaintiff - Appellee, D.C. No. 2:05-cr-00128-LKK-1

v.
MEMORANDUM *
JAMES KALFSBEEK,

Defendant - Appellant.

UNITED STATES OF AMERICA, No. 10-10189

Plaintiff - Appellee, D.C. No. 2:05-cr-00128-LKK-8

v.

DONNA ROWE,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 Argued and Submitted February 14, 2012
San Francisco, California

Before: B. FLETCHER, NOONAN, and PAEZ, Circuit Judges.

James Kalfsbeek appeals his conviction, after a jury trial, of four counts of

money laundering; Donna Rowe appeals her conviction, after a jury trial, of three

counts of money laundering and one count of conspiracy. Kalfsbeek and Rowe

bring several challenges to the sufficiency of the evidence to support the jury’s

verdicts; Kalfsbeek argues that the district court erred under Federal Rule of

Criminal Procedure 32 during the sentencing hearing; and Kalfsbeek and Rowe

appeal the district court’s denial of their Federal Rules of Criminal Procedure 29

and 33 motions based on the sufficiency of evidence.

We review de novo the sufficiency of evidence, first viewing the evidence in

the light most favorable to the prosecution and resolving any competing inferences

accordingly. We then determine whether the evidence, so viewed, is sufficient to

allow “any rational trier of fact [to find] the essential elements of the crime beyond

a reasonable doubt.” United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010)

(en banc) (internal citation omitted).

Kalfsbeek argues that the evidence is insufficient to prove that the relevant

funds were derived from criminal activity. The government presented evidence

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that Puget’s Sound Agricultural Society, Ltd. (“PSASL”) existed only to conduct

an illegal insurance scheme; it argued at trial that any mentions within PSASL

materials of other services and products were prospective and speculative only.

Defendants did not present evidence. Under Nevils, we resolve conflicting

inferences in favor of the prosecution. We hold that the evidence was therefore

sufficient to allow a jury to conclude beyond a reasonable doubt that the relevant

proceeds derived from criminal activity.

Kalfsbeek and Rowe argue that the evidence is insufficient to prove that the

funds at issue were “profits” of the illicit scheme. But the government is under no

obligation to prove that the funds at issue were “profits”; it need only provide

evidence sufficient to support the jury’s finding that the funds were “receipts” of

the scheme, and it did so. See United States v. Wilkes, 662 F.3d 524, 549 (9th Cir.

2011) (holding that under United States v. Santos, “proceeds” means “gross

receipts” “except where the money transfers are ‘inherent in the scheme’”); see

also United States v. Santos, 553 U.S. 507, 515 (2008) (discussing the “merger

problem” that would result if “proceeds” were deemed to be all “receipts”).

The money transfers were “receipts” of the scheme, and were not inherent to

it. One of Kalfsbeek’s money laundering counts is based on PSASL’s transfer of

$150,000 to a Canadian bank account after the Michigan default judgment against

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PSASL was filed in the Northern District of California. The three remaining

money laundering counts, which are the same for both defendants, are based on

three checks written to co-conspirators after PSASL declared that it was shutting

down. We hold that these money transfers were therefore not inherent to the

scheme and, under Wilkes, the government is not required to show that the funds

were “profits” of the scheme.

Rowe argues that the evidence is insufficient to prove that she engaged in

conduct that was designed to conceal or disguise the nature, the location, the

source, the ownership, or the control of the proceeds of specified unlawful activity.

The government presented evidence that Rowe knew about the default judgment

before she wrote the checks that form the factual basis for the money-laundering

counts; she cooperated with others to set in motion a plan to transfer the funds

from the Canadian account, though PSASL was under a court order to convey the

funds to law enforcement authorities; she knew that the funds were passed through

two trusts unrelated to PSASL; and she caused three checks to be written that drew

on the account containing the illicit funds. Under Nevils, we conclude that the

evidence is sufficient to support the jury’s finding that Rowe engaged in conduct

designed to conceal or disguise key attributes of the receipts of the scheme.

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 For the same reasons, we conclude that the government presented evidence

sufficient to support the jury’s verdict that Rowe joined a scheme to defraud and is

therefore guilty of conspiracy.

Kalfsbeek argues that the district court committed procedural error under

Federal Rule of Criminal Procedure 32 by failing to determine whether Kalfsbeek

had reviewed the presentence report and discussed it with counsel. We need not

decide the issue, because any such error was harmless. See United States v.

Soltero, 510 F.3d 858, 863-864 (9th Cir. 2007). Kalfsbeek submitted objections to

the presentence report, indicating that he had reviewed it, and in his briefing he

does not allege that any harm ensued from the error. We hold, under Soltero, that

any Rule 32 error was harmless and does not warrant resentencing.

Kalfsbeek argues that the district court committed procedural error by failing

to resolve factual disputes at the sentencing hearing. On appeal, he points to his

first and fifth objections. The district court found that Kalfsbeek was not

motivated by greed, a finding directly relevant to Kalfsbeek’s first objection. With

regard to Kalfsbeek’s fifth objection relating to the enhancement for sophisticated

means, the district court stated that it did not agree that the means were not

sophisticated; it then specifically adopted the presentence report’s relevant

findings. Moreover, the court found that ruling on the objections was unnecessary

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because it had already decided to make a substantial downward departure. We

therefore hold that the district court did not violate Rule 32 and we affirm

Kalfsbeek’s sentence.

Kalfsbeek and Rowe both made Federal Rule of Criminal Procedure 29

motions, which were denied, and they joined in a Federal Rule of Criminal

Procedure 33 motion for a new trial, which was also denied. We affirm the district

court’s denial of the Rule 29 motions, which we review on the same standard as the

sufficiency of evidence, supra. See United States v. Gonzalez-Diaz, 630 F.3d

1239, 1242 (9th Cir. 2011).

We review a district court’s denial of a motion for a new trial for abuse of

discretion, so long as the alleged error is not a Brady violation. See United States

v. Price, 566 F.3d 900, 907 (9th Cir. 2009); United States v. Mack, 362 F.3d 597,

600 (9th Cir. 2004).

Kalfsbeek and Rowe moved for a new trial based on the government’s

alleged failure to show that the funds at issue were “profits” of illicit activity, as

they argued was required by Santos, 553 U.S. at 514. Because we hold that the

evidence was sufficient to support the convictions, we likewise hold that the

district court did not abuse its discretion in denying the defendants’ joint motion

for a new trial.

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AFFIRMED.

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