United States v. Nicholas Lindsey
680 F. App'x 563
9th Cir.2017Background
- Lindsey was convicted by jury on nine counts of wire fraud and one count of aggravated identity theft; district court sentenced to consecutive terms (108 months and 24 months) and ordered restitution of $2,286,911.
- This memorandum disposition affirms some convictions, but vacates Lindsey's sentence and remands for further explanation on an obstruction-of-justice enhancement and for restitution recalculation.
- The court also denies Lindsey’s bail pending appeal and addresses other asserted trial objections in the defense portion of the opinion.
- Lindsey challenged sidebars and preservation of objections due to untranscribed discussions, contending it affected reviewability of two issues (expert testimony and materiality).
- The district court permitted lender-employees to testify as lay witnesses; the court found their testimony relied on perception and personal observation.
- Enhancement arguments included abuse of a position of trust and sophisticated means; both enhancements were upheld, subject to remand on materiality for the obstruction enhancement and restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of objections from untranscribed sidebars | Lindsey preserved objections; inadequate transcript prejudiced review | No prejudice; some issues preserved and materiality reviewed de novo | No prejudice; materiality reviewed de novo; remand on unrecorded sidebar |
| Admission of lenders’ lay witness testimony | Testimony improperly admitted as lay testimony | Testimony admissible under Rule 701 based on perception | District court did not abuse discretion; lay testimony admissible |
| Admission of prior bad acts evidence | Erroneous under Rule 404(b) and prejudicial | Any error deemed non-prejudicial to substantial rights | No plain error affecting substantial rights |
| Abuse of trust enhancement under USSG § 3B1.3 | Enhancement appropriate due to position of trust | Not applicable or misapplied in this context | Enhancement upheld |
| Sophisticated means enhancement under USSG § 2B1.1(b)(10)(C) | Scheme was extensively planned and sophisticated | Not warranted or misapplied here | Enhancement upheld |
| Obstruction of justice enhancement and restitution amount | Perjury and restitution calculation properly supported | Need fuller explanation and correct restitution method | Remanded for full explanation of obstruction enhancement and recalculation of restitution |
Key Cases Cited
- United States v. Beck, 418 F.3d 1008 (9th Cir. 2005) (lay opinion based on perception standard)
- United States v. Allen, 787 F.2d 933 (4th Cir. 1986) (perception-based lay testimony)
- United States v. Bracy, 67 F.3d 1421 (9th Cir. 1995) (prior bad acts preserved; impact on substantial rights)
- United States v. Laurienti, 731 F.3d 967 (9th Cir. 2013) (professional or managerial discretion in trust analysis)
- United States v. Aragbaye, 234 F.3d 1101 (9th Cir. 2000) (sophisticated means defined; planning consideration)
- United States v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007) (per curiam on remand regarding sentencing enhancements)
- United States v. Luis, 765 F.3d 1061 (9th Cir. 2014) (restitution calculation starting point and method)
- Robers v. United States, 134 S. Ct. 1854 (2014) (restitution framework and standard)
- Reynolds v. United States, 956 F.2d 192 (9th Cir. 1992) (danger may include pecuniary harm in bail determinations)
- United States v. Handy, 761 F.2d 1279 (9th Cir. 1985) (clear error standard for bail findings)