United States v. David Tamman
782 F.3d 543
9th Cir.2015Background
- Tamman, a California attorney, aided Farahi’s unregistered securities offering via backdated private placement memoranda (PPMs).
- Farahi used NewPoint to raise over $30 million through debentures and employed investor funds for personal and high-risk trading.
- Tamman was indicted on multiple counts related to conspiracy, obstruction, document alteration, and aiding Farahi’s false SEC deposition testimony; he waived jury trial for a bench trial.
- At sentencing, the district court applied both the Broker-Dealer enhancement and the Special Skill enhancement to Tamman, treating them as distinct conduct by principal and accessory.
- The district court determined Tamman’s base offense level under § 2X3.1 and then applied additional loss and victim characteristics, along with § 3B1.3 and § 3C1.1 enhancements, yielding a total offense level of 34.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| WhetherBroker-Dealer and Special Skill enhancements may co-apply. | Tamman argues prohibiting double counting; they are duplicative. | District court and government contend separate purposes permit both. | Yes—the dual application is allowed here. |
| Whether Tamman’s jury waiver was knowing and intelligent. | Tamman contends inadequate inquiry due to medications and stress. | Court properly assessed competence and relied on attorney’s representation. | Waiver found knowing and intelligent. |
| Whether district court properly excluded expert testimony. | Exclusion prejudiced Tamman by omitting defense experts. | Exclusions were permissible due to lack of proper foundation and non-legal opinions. | No reversible error; rulings not plain error. |
| Whether Amouei’s coconspirator statement was admissible. | Statement should be excluded as hearsay or improper coconspirator statement. | Statement falls within coconspirator nonhearsay exception. | Admissible nonhearsay under Rule 801(d)(2)(E). |
| Whether loss and victim calculations were correct. | Tamman defended that loss/victims were underestimated given his accessory status. | District court properly used revised disclosures and foreseeability for loss and victims. | Loss and victim calculations affirmed. |
Key Cases Cited
- United States v. Gadson, 763 F.3d 1189 (9th Cir. 2014) (guidelines interpretations and factual review at sentencing)
- United States v. Smith, 719 F.3d 1120 (9th Cir. 2013) (double counting and multiple enhancements)
- United States v. Rosas, 615 F.3d 1058 (9th Cir. 2010) (double counting prohibition in sentencing guidelines)
- Holt v. United States, 510 F.3d 1007 (9th Cir. 2007) (dual application of related enhancements)
- United States v. Christensen, 18 F.3d 822 (9th Cir. 1994) (requirement of in-depth colloquy when mental state is at issue)