Unpublished Disposition, 917 F.2d 567 (9th Cir. 1990)

MEMORANDUM^* 

We understand but reject the defendants' argument that there was lack of sufficient evidence (1) of the content of each interstate telephone call, (2) that the calls were in furtherance of a scheme, and (3) that any misrepresentation was material. There is no doubt that the government elected to specify the telephone calls upon which it relied. Whether those calls were personal calls or in furtherance of the scheme was a question for the trier of fact. In analyzing the sufficiency of the evidence, our review questions whether any rational trier of fact could have found the essential elements of the crime from the evidence adduced beyond a reasonable doubt. We are required to view the evidence in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987). We have carefully reviewed the record and applicable precedent and have listened to argument of counsel. There was sufficient evidence, both direct and circumstantial, to support the verdict. See United States v. Schmuck, 489 U.S. 705 (1989); Pereira v. United States, 347 U.S. 1 (1954).

The district court is not required to make formal findings of fact concerning the factors considered in awarding restitution. United States v. Cloud, 872 F.2d 846, 855 (9th Cir.), cert. denied, 110 S. Ct. 561 (1989). The court may rely on evidence presented in court or in the presentence report if proved in the latter by a preponderance of the evidence. As to Rimbach, the court assessed restitution at the lowest of his own assessment. As to Swift and Rubin, restitution was based on the total amount of discount received as a result of purchasing in Northland's name.

The defendants argue that McKesson was not a victim, but their argument overlooks the ruling of the court. Restitution was to be paid to McKesson (via the Justice Department) for distribution "by them to the appropriate drug manufacturers." Restitution may properly be awarded for "all losses directly resulting from the defendant's offenses." United States v. Barany, 884 F.2d 1255, 1260 (9th Cir. 1989), cert. denied, 110 S. Ct. 775 (1990). The invoices of record permit precise allocation among the manufacturers. The distribution by McKesson is therefore a purely ministerial act.

We understand but reject the defendants' grand jury prejudice argument. See United States v. Mechanik, 475 U.S. 66, 70 (1986); United States v. Al Mudarris, 695 F.2d 1182, 1186 (9th Cir.), cert. denied, 461 U.S. 932 (1983).

AFFIRMED.