United States v. Melvin AdaUnited States v. Melvin Ada
2. Polk filed a state habeas petition in the California Supreme Court on June 28, 2012, which was denied on October 31, 2012. AEDPA allows statutory tolling for “[t]he time during which a properly filed application for State post-conviction ... review ... is pending[.]”
3. Polk claims entitlement to equitable tolling because she (1) lacked access to her legal papers; (2) lacked access to writing supplies; (3) lacked access to the prison law library; and (4) is actually innocent. But Polk’s extensive filings in other cases during the limitations period belie her equitable tolling arguments in general and in particular doom any claim that she was unable to file a stay-and-abey petition. See Pace v. DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (instructing state prisoners unsure about whether they are entitled to statutory tolling to file a protective § 2254 petition). Equitable tolling is appropriately granted only when the circumstances surrounding delay are “extraordinary” and “beyond a prisoner’s control.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (quoting Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). Here, the cause for delay was the routine fact that Polk did not receive immediate notice of the state court action. Although “prolonged delay by a state court in sending notice of a ruling that completes exhaustion of state court remedies can toll the AEDPA limitations period,” Ramirez v. Yates, 571 F.3d 993, 997-98 (9th Cir. 2009) (quoting Diaz v. Kelly, 515 F.3d 149, 155 (2d Cir. 2008)), there was no such delay here.
4. The district court correctly rejected Polk’s actual innocence claim because she failed to produce any new evidence, see Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), rather merely reiterating her interpretation of the trial evidence.
AFFIRMED
Garth R. Backe, Assistant U.S. Attorney, Russell Henry Lorfing, Assistant U.S. Attorney, USNMI—Office of the US Attorney, Saipan, MP, Ross K. Naughton, USSAC—Office of the US Attorney, Sacramento, CA, for Plaintiff-Appellee
Colin Murphy Thompson, Attorney, Thompson Law Office, LLC, Saipan, MP, for Defendant-Appellant
Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.
Melvin G. Ada appeals the District Court’s application of several sentencing enhancements and departures after his guilty plea convictions for theft or embezzlement (
Ada first argues that the District Court erred in applying a two-level sophisticated means enhancement to his theft and fraud convictions. See U.S.S.G. § 2B1.1(b)(10)(C). Under the U.S. Sentencing Guidelines, sophisticated means involves “especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense.” U.S.S.G. § 2B1.1(b)(10)(C), app. n.9. Although the Guidelines give examples such as use of offshore financial accounts to hide assets or transactions, the Guidelines do not require such conduct. See U.S.S.G. § 2B1.1(b)(10)(C), app. n.9. Ada opened and used bank accounts with names deceptively similar to MMS to deposit stolen MMS checks, and he manipulated financial records to conceal his fraudulent scheme. The District Court did not err in applying the sophisticated means enhancement. See United States v. Tanke, 743 F.3d 1296, 1307-08 (9th Cir. 2014).
Similarly, Ada argues that the District Court erred in imposing a two-level sophisticated money laundering enhancement to his money laundering convictions. See U.S.S.G. § 2S1.1(b)(3). Although the Guidelines note that sophisticated laundering typically involves the use of fictitious entities, shell corporations, or offshore financial accounts, such conduct is not required for the enhancement to apply. See U.S.S.G. § 2S1.1(b)(3), app. n.5. Ada deposited and transferred numerous stolen checks through multiple bank accounts with deceptive names. Thus, the District Court did not abuse its discretion in imposing the sophisticated laundering enhancement.
Next, Ada asserts that the District Court erred in imposing a two-level leadership enhancement to his money laundering convictions. The Guidelines allow a two-level increase “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity” involving “one or more other participants.” U.S.S.G. § 3B1.1(c) & app. n.2. A participant is someone “who is criminally responsible for the commission of the offense” even if acquitted. U.S.S.G. § 3B1.1(c), app. n.1; see also United States v. Dota, 33 F.3d 1179, 1188-89 (9th Cir. 1994). Ada’s wife’s
Ada further contends that the District Court impermissibly double-counted when it departed upward three levels on the basis of disruption of a governmental function and public welfare endangerment. Ada’s embezzlement caused the government’s hospital significant disruption by forcing the closure of its peritoneal dialysis clinic for several months. See U.S.S.G. § 5K2.7. His conduct also endangered the public health by forcing patients to undergo more serious treatment, including emergency surgery, after the clinic’s closure. See U.S.S.G. § 5K2.14. Therefore, the District Court did not abuse its discretion in departing upward from the Guidelines. See United States v. Sablan, 114 F.3d 913, 917 (9th Cir. 1997) (en banc).
The District Court erred in awarding MMS restitution in the amount of $132,565.08. During the restitution hearing, MMS presented testimony, e-mail correspondence, and eleven invoices, claiming that the Commonwealth Health Center (“CHC“) had not paid it $76,914.45, but MMS’s presentation established only that CHC refused to pay the eleven invoices. The Government concedes that MMS failed to establish that Ada caused CHC’s failure to pay MMS the $76,914.45. See United States v. Swor, 728 F.3d 971, 974 (9th Cir. 2013). That portion of the award is not supported. We therefore vacate the restitution award and remand to the District Court for a proper determination.
AFFIRMED in part, VACATED in part, and REMANDED.
Vincent Lee Rabago, Esquire, Attorney, Vince Rabago Law Office, PLC, Tucson, AZ, for Plaintiff-Appellant
Marc James Ayers, Bradley Arant Boult Cummings LLP, Birmingham, AL, Ariel Edward Stern, Esquire, Attorney, Akerman LLP, Las Vegas, NV, for Defendants-Appellees Nationstar Mortgage, LLC, Bank of America, N.A., Mortgage Electronic Registration Systems, Inc.
Allison R. Schmidt, Esquire, Attorney, Akerman LLP, Las Vegas, NV, for Defendants-Appellees First American Trustee Servicing Solutions, LLC, Aurora Loan Services, LLC
Marc James Ayers, Bradley Arant Boult Cummings LLP, Birmingham, AL, for Defendant-Appellee Wells Fargo Bank, N.A.
for oral argument, set forth in his opening brief, is denied.