UNITED STATES оf America, Plaintiff-Appellee, v. David TAMMAN, Defendant-Appellant.
No. 13-50463.
United States Court of Appeals, Ninth Circuit.
Filed April 3, 2015.
Argued and Submitted Nov. 21, 2014.
782 F.3d 543
Before: WILLIAM A. FLETCHER and JAY S. BYBEE, Circuit Judges, and DAVID ALAN EZRA, District Judge.*
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The challenged disclosure poses at the most a minimal burden on First Amendment rights. It simply requires that potential signatories be allowed to determine the name of an official proponent when they are deciding whether to grant him an official role in the legislative process. As such, a proponent is akin to a candidate for public office and, accordingly has no right to anonymity on the face of the initiative petition. Disclosure of his identity on the petition is substantially related to the government‘s important interests in the integrity of the electoral process and in providing voters with official information regarding the initiative.
IV.
We hold that the requirement that the official proponent of an initiative be an elector, thereby excluding corporations and associations from holding that position, does not violate the plaintiffs’ First Amendment rights to freedom of speech and association. We also hold that the requirement that the name of the official proponent of an initiative be disclosed on the face of the initiative petitions withstands exacting scrutiny under the First Amendment.
AFFIRMED.
Paul G. Stern (argued) and Elana Shavit Artson, Assistant United States Attorney, Office of the United States Attorney, Los Angeles, CA, for Plaintiff-Appellee.
OPINION
EZRA, District Judge:
Appellant David Tamman raises five issues in his appeal from the district court‘s judgment of conviction and sentence. We
We then address Tamman‘s additional bases for appeal: his arguments thаt (1) his waiver of his right to a jury trial was not knowing, voluntary, and intelligent; (2) the district court erred in excluding two proffered experts; (3) the district court erred in admitting the statement of an alleged coconspirator; and (4) the district court erred in calculating loss and victim amounts, as required under the Sentencing Guidelines. We affirm the district court‘s conviction and sentence.
I. Factual and Procedural History
In 2003, Tamman, an attorney licensed in California, began performing work for NewPoint Financial Services, Inc., a company owned by John Farahi. To raisе money through NewPoint, Farahi made private offerings of debentures. NewPoint did not register the debentures with the SEC, and while it took steps to make it appear that it was complying with federal securities law pertaining to unregistered securities—including hiring Tamman to prepare private placement memoranda (PPMs) for the debentures—it in fact regularly failed to disclose material information to investors, in violation of the securities laws.
In 2003, Tamman prepared a PPM that failed to disclose all mаterial risks and facts pertaining to the investment. In 2004, when the National Association of Securities Dealers, now known as the Financial Industry Regulatory Authority (FINRA), began an examination of NewPoint that required disclosure of the 2003 PPM, Tamman made substantial changes to the 2003 PPM and provided the new, backdated version to FINRA without disclosing that any changes had been made.
From 2005 to 2009, Farahi raised over $30 million from investors through debentures. Although he represented to the investors that these debentures were low-risk investments, Farahi usеd the funds for various undisclosed purposes, including payment of his own personal expenses, principal repayments to previous investors, and higher-risk futures options trading. In 2008, his loss of approximately $26 million from option trading significantly hampered his ability to repay NewPoint investors and creditors. Nevertheless, he continued to assure investors that their funds were safe and began to raise additional money to pay back prior investors, sustain his personal expenses, and engage in options trаding.
In 2012, Tamman was indicted and charged with one count of conspiracy to obstruct justice, one count of accessory after the fact to mail fraud and securities law violations, five counts of altering documents to influence a federal investigation, and three counts of aiding and abetting Farahi‘s false testimony at an SEC deposition. On October 5, 2012, Tamman waived his right to a jury trial and opted for a bench trial. During in limine hearings on October 1, 2012, and October 15, 2012, the district court excluded Tamman‘s experts, Mason Dinehart and Stanley Lamport. The district court offered Tamman the chance to revise Dinehart‘s report and requested that the substance of Lamport‘s report be included in a trial brief. His case proceeded to trial on October 31, 2012.
In November 2012, the district court found Tamman guilty, and in September 2013, sentenced him to 84 months of imprisonment, well below the calculated Sentencing Guidelines sentencing range of 151 to 188 months.
II. Discussion
On appeal, Tamman argues that his conviction was the result of an unconstitutional jury waiver and expert testimony exclusion, as well as inadmissible hearsay. He also argues that three errors at sentencing—simultaneous application of the Broker-Dealer and Special Skill enhancements, and calculation of loss and number of victims—necessitate remand. We disagree.1
A. Alleged Sentencing Errors
The district court sentenced Tamman as an accessory after the fact to Farahi‘s crimes of mail fraud and unregulated offer and sale of securities, pursuant to
In Tamman‘s case, the base offense level was therefore the total offense level for Farahi‘s mail fraud and securities crimes, which is prescribed by
Upon calculating the total offense level for Farahi‘s crime and subtracting the requisite levels, the district court then added special offense characteristics specific to Tamman: a two-level enhancement for Tamman‘s use of his lawyering skills tо commit the crime under
Tamman challenges the dual application of the Broker-Dealer and Special Skill enhancements, as well as the district court‘s factual findings as to the total loss amount and total number of victims. We review the district court‘s interpretation of the Sentencing Guidelines de novo and its findings of fact at sentencing for clear error. United States v. Gadson, 763 F.3d 1189, 1219 (9th Cir. 2014).
1. Application of Broker-Dealer and Special Skills Enhancements
Tamman contends that the dual application of the Broker-Dealer enhancement and the Special Skills enhancement was improper and barred by the Sentencing Guidelines. In support, Tamman cites the Sentencing Guideline Application Note to
As this court has long acknowledged, the Sentencing Guidelines recognize the problems inherent in double counting and, in an effort to avoid increasing a defendant‘s sentence for a harm that has already been fully taken into account, expressly prohibit the dual application of Sentencing Guidelines that account for the same harm. United States v. Smith, 719 F.3d 1120, 1124 (9th Cir. 2013) (citing United States v. Rosas, 615 F.3d 1058, 1065 (9th Cir. 2010); United States v. Holt, 510 F.3d 1007, 1011 (9th Cir. 2007)). “However, ‘when each invocation of the behavior serves a unique purpose under the Guidelines,’ we conclude that the Commission ‘authorized and intended’ the cumulative application of both provisions.” Id. at 1011.
In 2003, the Sentencing Commission amended the Broker-Dealer enhancement to cover registered brokers and dealers, associated persons of a broker or dealer, investment advisers, and associated persons of an investment adviser.
The Commission concluded that a four level enhancement appropriately reflects the сulpability of offenders who occupy such positions and who are subject to heightened fiduciary duties imposed by securities law or commodities law similar to duties imposed on officers and directors of publicly traded corporations. Accordingly, the court is not required to determine specifically whether the defendant abused a position of trust in order for the enhancement to apply, and a corresponding application note provides that, in cases in which the new, four level enhancement applies, the existing two level enhancement for abuse of position of trust at
§ 3B1.3 (Abuse of Position of Trust or Use of Special Skill) shall not apply.
Id.
As the Commentary makes clear, the prohibition on the dual application of the Broker-Dealer and Special Skill enhancements reflects the Commission‘s view that the Broker-Dealer enhancement already
2. Calculation of Loss Amount
Next, Tamman argues that the district court erred in calculating a loss figure greater than $20 million under
Although Tamman is correct that the extent of loss was not аn essential element of Farahi‘s crime, the district court did not end its loss examination there. First, the district court examined the PPMs that Tamman backdated. It credited the amounts disclosed therein because Tamman had altered the disclosures so that it would appear that the disclosures originally made to investors matched the current financial situation of NewPoint. Given that the purpose of revising the PPMs was to reflect NewPoint‘s actual financial condition, the district court did not clearly err by relying on the amounts disclosed in the revised PPMs. Second, the district court properly credited the testimony of Elaheh Amouei, Farahi‘s bookkeeper, which indicated that Tamman had substantial knowledge of Farahi‘s activities. Based on this combination of evidence, the district court correctly held that the full measure of Farahi‘s loss would have been foreseeable to Tamman.
3. Calculation of Number of Victims
Finally, Tamman argues that the district court erred in finding that the crime involved more than 50 victims under
Although Tamman is correct thаt the evidence only proves that Tamman had actual knowledge of 43 victims, the district court did not err in finding that Tamman could have reasonably foreseen the additional 41 victims of Farahi‘s crime. The
B. Jury Waiver
Tamman‘s second claim on appeal is that the district court failed to make an adequate inquiry or provide sufficient information to Tamman to ensure his jury waiver was knowing, voluntary, and intelligent. Tamman contends that, upon learning that Tamman took medications and that Tamman was unsure as to whether he was “under the influence,” the district court had the duty to conduct an in-depth colloquy to assess Tamman‘s competence. Additionally, Tamman argues that because the district court gave him less time than he originally requested to decide whether to waive a jury, his stress and anxiety may have exacerbated the impact of his conditions and medications. Finally, Tamman argues that the district court failed to sufficiently inform him of the rights he would relinquish pursuant to a jury waiver, as required under United States v. Cochran, 770 F.2d 850, 853 (9th Cir. 1985). “We review the adequacy of a jury-trial waiver de novo.” United States v. Shorty, 741 F.3d 961, 965 (9th Cir. 2013).
1. Adequacy of the Inquiry
A criminal defendant may waive his right to trial by jury if there is (1) a written waiver that is knowing and intelligent, (2) governmental consent, and (3) court approval.
Here, when Tamman stated that he was unsure whether he was under the influence of his medications, the district court carefully inquired whether those medications affected his understanding of the proceedings and the nature of the right that he was waiving. Tamman responded that they did not. Moreover, Tamman‘s behavior and responses to questions throughout the proceeding indicated that he was competent to waive his right to jury trial, and Tamman‘s attorney represented to the district court that Tamman was competent to make the waiver. Tamman presents no evidence that the expedited time frame for the jury waiver would have had any effect on his competence.
The only evidence upon which the district court could rely were the responses Tamman provided to its questions, his behavior throughout the hearing, and the representations made by his attorney. That evidence indicated that Tamman was competent to waive his jury trial, and this court affirms the district court‘s finding.
2. Sufficiency of the Colloquy
Before a defendant waives his right to a jury, the district court must ensure that he knows what the right guarantees. Cochran, 770 F.2d at 853. Accordingly, district courts are strongly encouraged, although not required, to inform defendants that “twelve members of the community compose a jury,” that “the de-
Here, as a practicing attorney and partner at a major law firm, Tamman was well aware of the rights that a jury trial would entail. The district court reasonably concluded that Tamman‘s competence, background, and experience ensured that he understood the mechanics of a jury trial and the rights he was waiving, even without an in-depth colloquy or a recitation of the four facts mentioned in Cochran. Accordingly, this court affirms the district court‘s finding of knowing and intelligent waiver.
C. Evidentiary Errors
Finally, Tamman challenges the district court‘s exclusion of expert testimony from Mason Dinehart and Stanley Lamport, as well as the admission of a statement from Amouei. Because Tamman did not preserve these evidentiary objections, the court reviews for plain error.2
1. Expert Opinions
In general, an expert may only testify as to “scientific, technical, or other specialized knowledge [that] will аssist the trier of fact to understand the evidence or determine a fact in issue“; an expert cannot testify to a matter of law amounting to a legal conclusion.
The district court excluded Lamport‘s opinion regarding Tamman‘s professional and ethical duties as an attorney in part because the trial had shifted from a jury trial to a bench trial and the district court did not believe live testimony was necessary on the issues presented in Lamport‘s report. Instead, the district court concluded that the applicable ethical standards could be presented in a trial brief. Because a district judge has the discretion as to the necessity of expert testimony, the district judge‘s determination that he was capable of understanding Lamport‘s testimony through a written proffer in a trial brief was not plain error. See Hooper v. Lockheed Martin Corp., 688 F.3d 1037, 1053 (9th Cir. 2012) (“[E]ven if expert testimony may assist the trier of fact, the trial court has broad discretion to admit or exclude it.“) (altеration and internal quotation marks omitted) (quoting Beech Aircraft Corp. v. United States, 51 F.3d 834, 842 (9th Cir. 1995) (per curiam)).
2. Amouei‘s Statement
Under
In the statement at issue, Amouei testified that Farahi told her that he had previously settled one of Tamman‘s legal bills by paying Tamman in cash. Farahi‘s statement informed Amouei of the state of the conspiracy and the bookkeeping necessarily associated with the consрiracy, and it took place while the conspiracy was ongoing. Moreover, the statement helped further the conspiracy by informing Amouei about the transfer of money within the conspiracy, which ensured that the bookkeeping of the conspiracy was accurate. The testimony is therefore coconspirator nonhearsay and the district court did not plainly err in admitting the statement.
III. Conclusion
In conclusion, we affirm the district court‘s dual application of the Broker-Dealer and Special Skill enhancements under the facts of this case, since the former reflected the principal‘s conduct and the latter reflected the defendant-accessory‘s conduct. Additionally, we hold that the district court did not err in calculating the loss or victim figures at sentencing. Finally, we affirm the district court‘s finding of jury waiver and its evidentiary rulings.
AFFIRMED.