NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30103
Plaintiff-Appellee, D.C. No.
3:13-cr-00103-SLG-1
v.
MICHAEL D. BRANDNER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted November 14, 2017
Pasadena, California
Before: KOZINSKI, HAWKINS, and PARKER,** Circuit Judges.
The District Court correctly denied Brandner’s motion to suppress the
testimony of witness Joseph Saranello. The record established that Saranello was
not an attorney, that it would not have been reasonable for Brandner to believe that
Saranello was an attorney, and, consequently, that no attorney-client relationship
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
existed. The District Court also correctly concluded that, even if the attorney-
client privilege applied, the privilege was overcome by the crime-fraud exception
because there was “reasonable cause to believe that the attorney’s services were
utilized in furtherance of the ongoing unlawful scheme.” In re Grand Jury
Proceedings, 87 F.3d 377, 381 (9th Cir. 1996) (citation and quotation marks
omitted).
We see no merit in Brandner’s argument that the District Court should have
dismissed the indictment because Saranello purportedly perjured himself at the
suppression hearing. The District Court correctly concluded that Saranello’s
testimony was not actually false and that the government did not knowingly
present false testimony.
Further, we see no merit in Brandner’s contention that the District Court
erred in computing the applicable sentencing guidelines or imposed a substantively
unreasonable sentence. The District Court correctly concluded that Brandner did
not intend to return the funds he took to Central America and that he had moved
them out of the United States in an attempt to conceal them from his wife and the
Alaska court in which his divorce proceeding was pending. The District Court’s
ensuing guidelines calculations were correct.
Nor was Brandner’s sentence substantively unreasonable. The District
Court properly considered the 18 U.S.C. § 3553(a) factors. Although the District
2
Court calculated his guidelines range to be 87 to 108 months, the District Court
sentenced Brandner to 48 months of imprisonment, a substantial downward
variance.
We have considered Brandner’s other arguments pertaining to, inter alia,
jury instructions and the denial of a lengthy continuance of the second trial due to
his first trial counsel’s unavailability and find them either not preserved or
meritless.
AFFIRMED.
3