Unpublished Disposition, 902 F.2d 41 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 41 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Cesar Goreno ONTIVEROS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Magdy Mohamed ANWAR, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Hesham KAMEL, Defendant-Appellant.

Nos. 88-1433, 89-10086, 89-10047 and 88-10048.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 1990.Decided April 30, 1990.

Before SNEED, FARRIS and FERNANDEZ, Circuit Judges.


Cesar Goreno Ontiveros, Hesham Zaki Kamel, and Magdy Mohamed Anwar, appeal their convictions of violations of 18 U.S.C. §§ 371, 1344, 2 (1988). Kamel seeks resentencing under the United States Sentencing Guidelines.


On October 17, 1988, Ontiveros, Kamel, and Anwar were convicted by jury of violating 18 U.S.C. § 371 by conspiring to defraud several federally chartered and insured financial institutions located in Arizona. Kamel also was convicted of five counts of violating 18 U.S.C. §§ 1344, 2 by defrauding four Arizona banks. Anwar was convicted of violating 18 U.S.C. §§ 1344, 2 on four of the same counts, whereas Ontiveros was convicted of violating 18 U.S.C. §§ 1344, 2 on two of the same counts. The defendants each were sentenced to a five-year prison term per count, to run concurrently. Each was ordered to pay $85,657.33 restitution to the defrauded banks.

Specifically, the defendants were convicted of conspiring to engage in and engaging in a check-kiting scheme1  between October 20, 1987, and March 31, 1988, on which date they were apprehended. They opened accounts in four Arizona banks (Western Savings & Loan, Arizona Bank, First United States Credit Union, and United Bank of Arizona), and deposited into those accounts worthless checks from closed accounts in Lloyd's Bank and Midland Bank PLC of London, England, and Deutsche Bank of Frankfurt, Germany. They also made deposits back and forth among the Arizona banks, far exceeding the actual funds in the accounts.

Appealing their convictions, the defendants seek reversals on numerous grounds. As it shall appear, we find none to be a ground for reversal.

1. Ontiveros claims that the testimony of a grand jury witness was misleading and that therefore the trial court should have dismissed the indictment against him.

2. Ontiveros claims that his statements to an INS agent were made while he was "in custody," but without the benefit of Miranda warnings, and that therefore the trial court should have suppressed testimony concerning these statements.

3. Kamel claims that the trial court should have stricken testimony of a particular bank employee because she (a) violated the court's exclusionary order by talking with another witness about the case, and (b) had contacts with one or more jurors.

4. Ontiveros and Kamel claim, respectively, that the trial court should have excluded extrinsic evidence relating to (a) Ontiveros' immigration status, (b) insufficient fund checks written by Kamel but not involved in the transactions listed in the indictment, and (c) Kamel's opening of multiple bank accounts beyond those involved in the transactions listed in the indictment.

5. Kamel claims that the government violated 18 U.S.C. § 3505 (1988) by introducing foreign bank records, that admission of these records violated his Sixth Amendment right to confrontation, and that the district court should have excluded this evidence.

6. Anwar claims that the court should have stricken comments made in the prosecutor's rebuttal argument that allegedly alluded to defendants' decisions not to testify.

7. Kamel and Anwar claim that the trial court should have instructed the jury that evidence of good faith on the part of the defendants was a defense against the charges.

8. Kamel claims that he should have been sentenced according to the United States Sentencing Guidelines.


The district court had jurisdiction of this case pursuant to 18 U.S.C. § 3231 (1988). This court has jurisdiction under 28 U.S.C. § 1291 (1982).


The trial court's refusal to dismiss an indictment for grand jury abuse is a mixed law and fact question reviewed de novo. United States v. Spillone, 879 F.2d 514, 520 (9th Cir. 1989).

Ontiveros asserts that the grand jury testimony of FBI Agent Gilbert Hirschy contained several misleading statements. Hirschy testified that Ontiveros had deposited four checks from the European banks into the Arizona banks. By contrast, at trial, the testimony revealed some uncertainty as to who precisely had deposited the checks into Ontiveros' account. The four checks, although deposited into accounts held by Ontiveros, were deposited into Automatic Teller Machines (ATMs). In two instances, the machines took photographs at the time of the transaction. The photographs were of Kamel, not of Ontiveros. On two other occasions, there was no photographic evidence. Furthermore, at trial, a handwriting expert could neither conclude nor rule out that the endorsement on the check was in Ontiveros' handwriting.

"An indictment may be dismissed for prosecutorial misconduct only upon a showing of 'flagrant error' that significantly infringes on the ability of the grand jury to exercise independent judgment and actually prejudices the defendant." United States v. Larrazolo, 869 F.2d 1354, 1357 (9th Cir. 1989). In United States v. Howard, 867 F.2d 548, 550 (9th Cir. 1989), this court distinguished between "mere [ ] ... errors in the grand jury charging process" and "issues of fundamental fairness that implicate substantial rights protected by the due process clause...." The power to dismiss an indictment on the basis of the former type of error derives from the federal courts' supervisory powers, and an indictment may be dismissed only in the face of actual prejudice, consistent with Fed. R. Crim. P. 52(a).2  Larrazolo, 869 F.2d at 1357-58 (citing Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55 (1988)). The latter type of error, which is of constitutional magnitude, so compromises the grand jury process " 'as to render the proceedings fundamentally unfair, allowing a presumption of prejudice' to the defendant." Id. (citing Bank of Nova Scotia, 487 U.S. at 256-57).

The fact that ambiguous evidence against Ontiveros was presented as if it were without ambiguity goes to the sufficiency of the evidence, and is not an error of constitutional magnitude. Therefore, we look to see if actual prejudice resulted from the error. In Bank of Nova Scotia, the Supreme Court held that "dismissal of the indictment is appropriate only 'if it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations." 487 U.S. at 256 (citing United States v. Mechanik, 475 U.S. 66, 78 (1986) (O'Connor, J., concurring)).

We conclude that the error in question did not affect the grand jury's decision to indict. The challenged statements constituted only a small segment of the overall evidence against Ontiveros heard by the grand jury. Agent Hirschy's testimony, for example, described a complex pattern of reciprocal check-writing and check-depositing in which all three defendants cooperated. Unchallenged testimony describing Ontiveros' opening of bank accounts used in the scam and his writing of worthless checks to the others for deposit into their accounts would have been more than sufficient to support an indictment. Thus, even if mention of the four ATM deposits in question had been excised from the testimony, the jury would have had probable cause to indict. Therefore, we find no prejudice to the defendant and uphold the district court's refusal to dismiss the indictment.

We review for clear error the trial court's factual determinations as to whether the defendant was in custody at the time the statements were made. United States v. Hudgens, 798 F.2d 1234, 1236 (9th Cir. 1986).

On March 2, 1988, INS agent Homan interviewed Ontiveros at the Phoenix office of the Social Security Administration. Homan questioned Ontiveros about his identity, age, place of birth, and immigration status. Ontiveros identified himself as "Raul Cano," the name on his resident alien card. Because the card did not look "right" to Homan, Homan asked Ontiveros to accompany him to the INS office. Ontiveros agreed, and drove in his own car to the INS office. Once there, Ontiveros was questioned by another agent.

Ontiveros claims that he was in Homan's "custody" at the time Homan questioned him, that Homan did not give him Miranda warnings, and that therefore Homan's testimony concerning statements made by Ontiveros at this time should have been suppressed.3  To support his allegation that he was in custody, Ontiveros refers to Homan's statement that Homan probably would have detained Ontiveros if, during questioning, Ontiveros had attempted to leave. In response, the government claims that the questioning was noncustodial. This follows from the fact that Ontiveros followed Homan to the INS office in his own car.

Consistent with Miranda v. Arizona, 384 U.S. 436 (1966), statements made by individuals during custodial interrogation are inadmissible if not preceded by a series of warnings concerning the individuals' rights against self-incrimination and to counsel. Miranda, by its own terms, applies to situations where an individual is in "custody or otherwise deprived of his freedom of action in [a] significant way." Id. at 444. " [T]he ultimate inquiry [for determining whether an individual is in custody] is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)).

The parties do not dispute that Ontiveros was not formally arrested at the time he answered Agent Homan's questions. Therefore, we apply an objective test to determine whether Ontiveros was in custody at that time, United States v. Crisco, 725 F.2d 1228, 1231 (9th Cir.), cert. denied, 466 U.S. 977 (1984), considering whether "a reasonable innocent person in [Ontiveros'] circumstances would conclude that after brief questioning he or she would not be free to leave," United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981). In United States v. Beraun-Panez, 812 F.2d 578, 581, modified by 830 F.2d 127 (9th Cir. 1987) (emphasis added), we endorsed a "refined" objective standard, and will therefore consider "how a reasonable person who was an alien would perceive and react to" the situation.

In applying the Beraun-Panez standard, we consider the totality of circumstances surrounding the questioning, including: (1) the language used by Agent Homan in summoning Ontiveros for questioning; (2) the physical characteristics of the place where the interview occurred; (3) the degree of pressure applied to detain Ontiveros; (4) the duration of the detention; and (5) the extent to which Ontiveros was confronted with evidence of his guilt. United States v. Hudgens, 798 F.2d 1234, 1236 (9th Cir. 1986) (citing Booth, 669 F.2d at 1235).

The record does not reveal what the Social Security personnel who contacted the INS and asked Ontiveros to wait in a back room said to Ontiveros. We do know that once Agent Homan arrived at the Social Security office dressed in plain clothes with no visible weapon and accompanied by a partner, he identified himself as an INS agent and asked Ontiveros a series of questions. The questions asked Ontiveros' name, place of birth, country of citizenship, and then focused more specifically on the immigration documents Ontiveros produced. Neither INS agent told Ontiveros that he was free to leave, nor did either inform him that if he attempted to leave, he might be arrested.

The interview took place in a large back Social Security office with several desks. A Social Security employee proceeded with his usual work in another part of the room and Homan's partner talked on the telephone during the course of the interview. At no time was Ontiveros physically restrained. Ontiveros does not contend that Agent Homan's questioning took on a confrontational or hostile tone, or that any pressure was applied to coerce Ontiveros to stay or to answer particular questions. Although the record does not reveal how long the interview lasted, Agent Homan testified that he asked Ontiveros approximately ten to fifteen questions.

This case is clearly distinguishable from Booth, where the defendant who had been in custody was patted down and handcuffed. See 669 F.2d at 1234. It differs also from Beraun-Panez, where the defendant who had been in custody was isolated from a co-worker in a remote field, was questioned harshly for thirty to ninety minutes, was accused of lying, and was threatened with deportation and separation from his family "if he continued to lie." See 812 F.2d at 579, 581-82. Although Ontiveros was interviewed in a back office out of public view, the presence of a Social Security worker going about his usual business would have mitigated any sense of isolation Ontiveros might have felt. Furthermore, Ontiveros was asked only a series of routine questions, was never accused of any illegality, and was never threatened or pressured.

It is possible that Ontiveros may have believed he was not free to go simply because he had been asked to stay in a government office without being told also that he was free to leave. This possibility, without more, however, does not lead us to conclude that the district court judge committed clear error in finding that Ontiveros was not in custody during this interview.

Furthermore, contrary to the defendant's assertions, it is not relevant to our analysis that Agent Homan subjectively intended to arrest Ontiveros if Ontiveros tried to leave. A questioner's "unarticulated plan [concerning future arrest of the suspect] has no bearing on the question whether a suspect was 'in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442 (1984) (footnote omitted).

This court reviews for abuse of discretion trial court decisions in response to violations by witnesses of exclusion orders. United States v. Avila-Macias, 577 F.2d 1384, 1389 (9th Cir. 1978).

The trial court invoked Fed.R.Evid. 6154  to order the exclusion of witnesses. One witness, Denise Clapp, an employee with United Bank, engaged in several out-of-court conversations with another bank employee and witness, T.J. Richards, about the transactions involved in the trial and about the trial itself. The conversations apparently occurred in the lunchroom, were brief, and did not concern the substance of each's testimony. The jury heard testimony describing the contacts. Kamel claims that these contacts constituted a violation of Rule 615.

Once the discussions between the witnesses were discovered, the judge admonished the attorneys for not preventing this problem and indicated that his invocation of Rule 615 at the beginning of trial implied that witnesses should not have discussed any aspect of their testimony with anyone other than the lawyers. He determined, however, that the circumstances did not warrant the striking of the testimony or the granting of a mistrial.

Kamel also contends that Clapp had inappropriate contact with jurors. According to Clapp, three men whom she thought she recognized from the jury saw her on the street near the courthouse and complimented her on her professional demeanor on the witness stand. She reported saying nothing more to them than "oh" or "thank you." After she reported this incident, the judge questioned each juror individually. Only one juror acknowledged any contact with her, and he claimed that he had been alone at the time and had only said "hi." Again, the trial judge denied Kamel's motion to strike Clapp's testimony or to declare a mistrial, concluding that there had "been no intrusion upon the integrity of the process."

The choice of an appropriate sanction for a witness' violation of an exclusionary order is within the trial court's discretion. See, e.g., Avila-Macias, 577 F.2d at 1389; United States v. Ell, 718 F.2d 291, 293 (9th Cir. 1983); Taylor v. United States, 388 F.2d 786, 788 (9th Cir. 1967). " [P]ermitting a witness to testify notwithstanding his disregard of the court's order of sequestration is not error...." Taylor, 388 F.2d at 788. We do not regard disqualification of a witness as the preferred remedy in cases where the trial court's order has been violated. Avila-Macias, 577 F.2d at 1389. " [I]t seems proper that unless the violation has somehow so discredited the witness as to render his testimony incredible as a matter of law he should not be disqualified from testifying." Taylor, 388 F.2d at 788.

Kamel has failed to show that the events described above affected the integrity of the judicial process in a manner deleterious to him. We conclude that the trial court did not abuse its discretion in deciding not to strike Ms. Clapp's testimony and in refusing to declare a mistrial.

This court reviews for abuse of discretion trial court decisions concerning admission of evidence under Fed.R.Evid. 404(b), United States v. Catabran, 836 F.2d 453, 459 (9th Cir. 1988) (citation omitted).

a. Background. Ontiveros claims that, inconsistent with the court's motion excluding reference to the defendant's illegal immigration status and illegal entry into the country, it permitted testimony concerning Ontiveros' possession of false immigration credentials. Ontiveros claims that the admission of this evidence violated Fed.R.Evid. 404(b). The government asserts that the testimony was necessary to show that Ontiveros used the name of Raul Cano as an alias, since the charges against Ontiveros included bank transactions Ontiveros made under the name of Cano.

b. Analysis. Technically, the court did not violate its own order5  by permitting Agent Homan to testify about his observation that the immigration card presented to him by Ontiveros as identification "did not look proper" and that there was "something not right about it." This testimony, together with the background testimony that revealed that Social Security staff contacted the INS to question Ontiveros, clearly implied to the jury the possibility that something about Ontiveros' immigration status was suspicious. Furthermore, even absent the connection with the INS, knowledge that Ontiveros may have presented any type of false credentials may have caused jurors to view him more negatively than not.

Thus, the testimony clearly had the potential to prejudice Ontiveros. To be permissible, extrinsic evidence of this type must meet the following requirements: (a) it must be offered for a proper purpose under Fed.R.Evid. 404(b); (b) it must be relevant; (c) and its probative value must substantially outweigh its potential for unfair prejudice, consistent with Fed.R.Evid. 403. Huddleston v. United States, 485 U.S. 681, 691 (1988).6  Furthermore, the extrinsic evidence must be sufficient to support a finding by the jury. Id. at 685.

In introducing Agent Homan's testimony to show Ontiveros' identity as Raul Cano, the person who participated in some of the transactions listed in the indictment, the prosecution introduced the evidence for a purpose permissible under Rule 404(b). And, unquestionably, it was relevant to the government's case that it make this showing. By using an alias to commit some of the crimes with which he was charged, Ontiveros forced the government to establish the connection between Ontiveros and his alias. The evidence was clearly probative of the fact that Ontiveros used the alias of Raul Cano. And, the evidence of identity presented through Homan's testimony clearly was sufficient to support a jury finding that Ontiveros, in fact, represented himself as Raul Cano. See Huddleston, 485 U.S. at 685.

Because the evidence was likely to "affect adversely the jury's attitude toward the defendant," it also clearly was prejudicial. United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982). Thus, the question that remains is whether the probative value of the evidence outweighed its prejudicial impact. Our determination whether this evidence should have been admitted hinges, in part, on whether the government could have made the connection between Ontiveros and his alias in any alternative, less prejudicial way.

The record reveals that bank employees to whom Ontiveros represented himself as Raul Cano identified him as the person who did business with the banks under that name. Furthermore, Ontiveros presented to bank employees other pieces of identification as Raul Cano, such as a state of Arizona picture identification card and driver's license, both of which are less prejudicial than is a false immigration card. Therefore, the testimony of Agent Homan was not essential to show Ontiveros' identity as his alias, Raul Cano. Therefore, the testimony should not have been admitted. Furthermore, testimony that Agent Homan asked Ontiveros to accompany him to the INS office, for example, was not only prejudicial, but also was irrelevant to and not probative of the question of Ontiveros' identity.

Yet, the district court's errors do not lead to reversal if harmless. United States v. Brown, 880 F.2d 1012, 1016 (9th Cir. 1989). The failure to exclude evidence is harmless if "it is more probable than not that the erroneous admission of the evidence did not affect the jury's verdict." United States v. Hodges, 770 F.2d 1475, 1480 (9th Cir. 1985). We conclude that the district court's errors in admitting Agent Homan's testimony were harmless in light of the overwhelming evidence of Ontiveros' guilt presented by the prosecution concerning the bank fraud charges against Ontiveros.

a. Background. Kamel contends that the trial court should have excluded evidence introduced by the government concerning insufficient fund checks he wrote in transactions not included in the indictment, and that admission of such evidence was prejudicial under Rule 404(b). Furthermore, he contends that the court should have excluded evidence that he and his codefendants had opened up multiple bank accounts in addition to those involved in the transactions listed in the indictment.

In response, the government argues that the insufficient funds evidence was probative of Kamel's intent to commit the acts with which he was charged. Because the government was required to prove that Kamel had a specific intent to defraud the banks, it had to counter defendants' arguments that their actions relative to the acts charged were the result of mistake or accident. Furthermore, it claims that the multiple bank account evidence was probative of 18 U.S.C. § 1344's specific intent requirement that one knowingly execute a scheme or artifice to defraud banks, in that the opening of these accounts was consistent with such a scheme.

b. Analysis. When, as in Kamel's case, evidence admitted under Rule 404(b) is introduced to show intent or plan, four conditions must be met: (1) evidence that the defendant committed the other act must be sufficient to support a finding by the jury to that effect; (2) the prior act must be similar and not too remote in time; (3) the evidence must be introduced to prove an element of the charged offense; and (4) the probative value of the evidence must outweigh any unfair prejudice to the defendant. United States v. Miller, 874 F.2d 1255, 1268 (9th Cir. 1989) (applying Huddleston to modify requirements previously set forth by the Ninth Circuit). All of these requirements clearly were met by the insufficient fund check and multiple bank account evidence. The acts introduced as extrinsic evidence were similar to the acts charged. All of the extrinsic evidence acts took place during the time period of the indictment. The evidence of these acts is extremely strong, and these acts clearly relate to Kamel's intent. Finally, the evidence of these acts is far more probative than prejudicial. We hold that the trial judge did not abuse his discretion in admitting the challenged extrinsic evidence concerning Kamel.

This court reviews for abuse of discretion trial court decisions concerning the admissibility of evidence, United States v. Lee, 846 F.2d 531, 536 (9th Cir. 1988), including those regarding the authenticity of evidence, United States v. Black, 767 F.2d 1334, 1342 (9th Cir.), cert. denied, 474 U.S. 1022 (1985).

At trial, the government introduced documents from three foreign banks to show that the bank accounts had been opened by Kamel and then closed prior to his writing checks on them as part of the scheme for which he was ultimately convicted. Kamel contends that the prosecution filed its Notice to Offer Evidence "well after the arraignment" in this case, and that the district court denied Kamel's motion in opposition to that evidence one day later and without a hearing. He contends that these procedures violated 18 U.S.C. § 3505(b) (1988).7  Kamel also argues that the admission of the evidence violated his Sixth Amendment right of confrontation because he was unable to cross-examine the foreign bank's employees concerning their knowledge of his relationship to the accounts in question.

None of the defendant's claims concerning the introduction of this evidence has merit. Section 3505(b) does not require that the Notice of Intention to Offer Evidence be presented at arraignment. Therefore, the prosecution did not violate the statute by filing the notice at a later date. Furthermore, section 3505 does not instruct the district court to hold a hearing on objections to the introduction of such evidence. It requires only that the court review any oppositions timely filed. The court did so in this case.

Concerning the Sixth Amendment claim, we have held that, whereas " [t]he Confrontation Clause establishes 'a preference for face-to-face confrontation at trial,' " that requirement is not absolute. See United States v. Miller, 830 F.2d 1073, 1077 (9th Cir. 1987), cert. denied, 485 U.S. 1033 (1988) (quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980)) (addressing the admissibility of foreign bank records under 18 U.S.C. 3505). "If the declarant is unavailable, his declaration is not constitutionally inadmissible if it bears 'indicia of reliability.' " Id. (citing Roberts, 448 U.S. at 65-66). Thus, admissibility ultimately turns on the court's authentication of the documents. There is no dispute about the authenticity of the documents in this case. The district court did not abuse its discretion in admitting these records.

This court reviews for abuse of discretion the trial court's decision to allow the jury to consider comments made in closing argument over the objections of the opposing party. United States v. Makhlouta, 790 F.2d 1400, 1403 (9th Cir. 1986) (citations omitted).

In his rebuttal argument, the prosecutor commented that the defense had failed to explain the defendants' conduct. The comments clearly referred to defense counsel's conduct in some instances, but were ambiguous in their reference to defense counsel versus the defendants in other instances. Anwar alleges that the prosecutor, although not mentioning the defendants by name, criticized their failure to testify. In so doing, Anwar contends, the prosecutor violated Anwar's right against self-incrimination under the Fifth Amendment. The government responds by asserting that the comments were directed toward the failure of the defense, not the defendants.

In Griffin v. California, 380 U.S. 609, 613-15 (1965), the Supreme Court underscored that the Fifth Amendment right against self-incrimination bars the prosecution from commenting upon a defendant's failure to testify. "The test to judge impermissible comment upon a defendant's assertion of his Fifth Amendment right not to testify is whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." United States v. Fleishman, 684 F.2d 1329, 1343 (9th Cir.), cert. denied, 459 U.S. 1044 (1982). " ' [A] comment on the failure of the defense as opposed to the defendant to counter or explain the testimony presented or evidence introduced is not an infringement of the defendant's Fifth Amendment privilege.' " United States v. Wasserteil, 641 F.2d 704, 709-10 (9th Cir. 1981) (citation omitted); see also Fleishman, 684 F.2d at 1343-44. Where the comments refer primarily to "the strength of the Government's case," they may be a fair reply to the arguments raised by the defense in its closing argument. United States v. Soulard, 730 F.2d 1292, 1307 (9th Cir. 1984).

Thus, the prosecutor's comments referring directly to the defense attorneys, as opposed to the defendants, clearly are permissible. Most of the prosecutor's statements concerning the defense in this case referred explicitly to the attorneys. In a few instances, the prosecutor used the pronoun "they" in a manner that might be viewed as ambiguous. Yet, within the context of the numerous other references to the attorneys themselves, the "theys" appear to refer to the defense attorneys or to the defense, not to the defendants.8  Therefore, we hold that the district court did not abuse its discretion in permitting the comments in question.

This court has not been entirely consistent in its use of a standard for reviewing a district court's denial of a defendant's proposed jury instruction. United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir. 1989); United States v. Davis, 876 F.2d 71, 72 (9th Cir.) (per curiam), cert. denied, 110 S. Ct. 188 (1989). Some panels have applied the abuse of discretion standard,9  whereas other have reviewed de novo.10  Anwar suggests that we apply the clearly erroneous standard under the analysis of United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

McConney, although applicable, leads to the conclusion that a de novo standard is most appropriate, Sotelo-Murillo, 887 F.2d at 179, because legal questions and mixed questions of law and fact in which legal issues predominate require de novo review. McConney, 728 F.2d at 1201-03. A determination of whether the jury instructions presented at trial constitute a fair and complete representation of applicable law is a predominantly legal question. Therefore, we review de novo, while mindful of the inconsistency in the circuit.11 

This circuit consistently requires that the reviewing court examine all of the jury instructions as a whole when considering whether they are misleading or incomplete. United States v. Spillone, 879 F.2d 514, 525 (9th Cir. 1989).

Kamel and Anwar assert that the trial judge erred in refusing to instruct the jury, as they requested, that "good faith" was complete defense to the charges against them.12 

If the trial judge gives an adequate specific intent instruction, no good faith instruction is required. United States v. Bonanno, 852 F.2d 434, 439-40 (9th Cir. 1988), cert. denied, 109 S. Ct. 812 (1989); United States v. Alcantar, 832 F.2d 1175, 1179 (9th Cir. 1987); United States v. Green, 745 F.2d 1205, 1209 (9th Cir. 1984). In Green, the defendant was convicted of mail fraud. The trial court instructed the jury that the government must "prove beyond a reasonable doubt 'that the defendant acted with the specific intention to defraud, that is, to deceive or mislead ..., rather than as a result of ignorance, mistake, or accident.' " 745 F.2d at 1209. This court held that instruction, which covered all of the elements included in the specific intent instruction in the instant case13  (although with somewhat less detail), to be sufficiently thorough. In light of the clarity of the relevant case law, it is immaterial which standard of review we apply. The district court did not err in refusing defendants' request to include the good faith instruction.

This court reviews de novo the application of the United States Sentencing Guidelines. United States v. Gray, 876 F.2d 1411, 1418 (9th Cir. 1989).

Kamel asserts that he was sentenced after the Ninth Circuit had determined that the Guidelines were unconstitutional, Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), but before the Supreme Court upheld the constitutionality of the Guidelines, Mistretta v. United States, 109 S. Ct. 647 (1989). He was not sentenced under the Guidelines and requests resentencing according to them. The government does not object to this request, but contends that all three defendants should be resentenced if one is resentenced.

This court has remanded for resentencing consistent with the Guidelines in all published cases where resentencing is sought by either party where a defendant was not sentenced according to the Guidelines during the several-month period when Gubiensio-Oritz was good law in the circuit. See, e.g., Gray, 876 F.2d at 1418-19; United States v. Bazemore, 869 F.2d 520, 521 (9th Cir. 1989). Therefore, such resentencing is proper. Pursuant to 18 U.S.C. § 3551 (1988), the Guidelines were to be applied to all persons convicted of federal crimes, except as provided by statute, once the Guidelines became effective on November 1, 1987.

Therefore, we remand to the trial court for resentencing of all three codefendants under the Sentencing Guidelines.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


In a kite, accounts are maintained in different banks and checks are drawn on one account and deposited in the other when neither account has any substantial funds in it to pay the checks drawn on it. Since it takes several days to collect a check, each account will show significant credits of uncollected checks, and those credits will persist as long as checks are drawn daily in each bank and deposited in the other

Mid-Cal Nat'l Bank v. Federal Reserve Bank, 590 F.2d 761, 762 (9th Cir. 1979). As the instant case shows, checks need not be drawn daily to maintain a kite. Here, checks were drawn from foreign banks. In some cases, the Arizona banks gave immediate credit to the checks, despite the typically long interval between deposit and clearing.


Fed. R. Crim. P. 52(a) reads: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."


Ontiveros also claims that he was not given Miranda warnings before FBI agents questioned him in a bank parking lot and for the first twenty to thirty minutes once brought to the FBI offices. He fails, however, to identify any specific testimony presented at trial that was derived from questioning that took place at those times. Thus, it is not necessary to determine whether Ontiveros was in custody during those periods


Fed.R.Evid. 615 reads: "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses...."


Although Ontiveros requested a motion in limine excluding not only mention of Ontiveros' illegal immigration status, but also introduction of the false credentials Ontiveros showed to Agent Homan, the court granted the motion with respect to the first point only


The Court also required that the trial court, upon request, instruct the jury to consider the evidence only for its proper purpose. 485 U.S. 691-92. Because the defendants do not contend that they requested and were denied such an instruction, we need not consider this requirement


Section 3505(b) reads:

At the arraignment or as soon after the arraignment as practicable, a party intending to offer in evidence under this section a foreign record of regularly conducted activity shall provide written notice of that intention to each other party. A motion opposing admission ... shall be made by the opposing party and determined by the court before trial. Failure by a party to file such motion before trial shall constitute a waiver of objection to such record or duplicate, but the court for cause shown may grant relief from the waiver.


Specifically, the prosecutor stated: "Now, these lawyers spent a lot of time talking today.... And we've heard a lot about World War II from these lawyers." The prosecutor then discussed military strategy and smokescreens, using "they" to refer to the Germans. The prosecutor continued: "Well, see, that's what's gone on here all day long. They've stood up and they've thrown up an awful lot of smoke at you to hide the fact that they can't explain away the evidence that damns them, the evidence that shows beyond a reasonable doubt ... that these guys were in cahoots to ripoff banks." The first "they've" and subsequent pronouns in this preceding string of sentences clearly referred to the attorneys or the defense, in that the attorneys had just completed standing up and delivering final arguments. The defendants had never testified, and therefore, never stood up allegedly creating a smokescreen. And the Germans, the other "they" in this passage, obviously were not in court

Immediately following the sentence in which the defendants are referred to as "these guys ... in cahoots together to ripoff banks," the prosecutor continued with his smokescreen analogy. "They threw up the smokescreen because they didn't want to have you see the truth, also because they couldn't explain away all the evidence you've heard for seven weeks." One might conclude that the pronoun "they" in this sentence refers to the defendants, since the prosecutor spoke of them as being in cahoots in the immediately preceding sentence. However, we do not reach that conclusion examining the comments in context. The smokescreen analogy was used throughout to refer explicitly to the attorneys, and we think it unlikely that jurors would have thought that the prosecutor had shifted his reference to the defendants.

The prosecutor continued by pointing out that: "They didn't have to stand up and say anything. It's my burden to prove this case beyond a reasonable doubt from the get go. They can sit down and not say a peep. It's my burden. But once they got up, you can evaluate what they didn't say as well as what they did say." Again, in context, the prosecutor's comments clearly refer to the defense attorneys, who actually did "stand up," and "say" things, whereas the defendants did not. The prosecutor was not referring to the defendants failure to testify, but the defense attorneys' alleged failure to honestly confront the evidence.

Again the prosecutor continued, first speaking about the lawyers when using the pronoun "they": " [T]hey threw up smoke, they talked about everything but the evidence, because it can't explain away the 200,000 bucks plus these guys took from the banks." He then switched his use of the pronoun "they" to refer to the defendants.

And we are not here today because the banks made a mistake. We are here today because these guys broke the golden rule. These guys don't act like all law-abiding citizens do. They took something from somebody else and they didn't have the right to do so. They were thieves in businessmen's suits. That's why we are here for the last seven weeks, not because of the banks. It's because these guys were floating some phony checks through some phony accounts.

The prosecutor next used the pronoun "they" to refer to bank accounts: "Ask yourself why all these accounts were opened up, why were none in any business names, why they are all for small amounts." And, the prosecutor once more switched his referent for "they," this time to the defense team. "They didn't give you an [sic] any explanations. They didn't have to stand up--"

We agree that any particular sentence or pair of sentences, out of context, might suggest that the prosecutor was referring to the defendants whenever he faulted the defense for not being more forthcoming. And, there is no question that the prosecutor's use of pronouns in his final argument might have been somewhat confusing. Yet, it is our task to review the comments as the jury heard them, in context and as a whole. Doing so, we do not believe that the defendants' Fifth Amendment right against self-incrimination was violated, because we do not believe that the jury interpreted these comments as a personal criticism on the defendants' decisions not to take the stand.


See, e.g., United States v. Busby, 780 F.2d 804, 806 (9th Cir. 1986); United States v. Green, 745 F.2d 1205, 1209 (9th Cir. 1984), cert. denied, 474 U.S. 925 (1985); United States v. Fleishman, 684 F.2d 1329, 1342 (9th Cir.), cert. denied, 459 U.S. 1044 (1982)


See, e.g., United States v. Spillone, 879 F.2d 514, 525 (9th Cir. 1989); United States v. Wagner, 834 F.2d 1474, 1486 (9th Cir. 1987); United States v. Doubleday, 804 F.2d 1091, 1093 (9th Cir. 1986), cert. denied, 481 U.S. 1005 (1987)


The panel in Sotelo-Murillo recognized that an intracircuit split "may be resolved authoritatively only through en banc proceedings." 887 F.2d at 179. This case, as Sotelo-Murillo, does not turn on the standard of review applied to this issue. Therefore, we are not confronted with " 'an unsatisfactory choice between two opposing lines of authority, neither of which has an unimpaired claim to being the law of the circuit' " on an issue that is dispositive. Id. (citing Greenhow v. Secretary of Health & Human Serv., 863 F.2d 633, 636 (9th Cir. 1988)


The proposed instruction read as follows:

Good faith is an absolute defense to the charges in this case.

If the defendant believed in good faith that he was acting properly, even if he was mistaken in that belief, and even if others were injured by his conduct, there would be no crime.

The burden of establishing lack of good faith and criminal intent rests upon the prosecution. A defendant is under no burden to prove his good faith; rather, the prosecution must prove bad faith or knowledge of falsity beyond a reasonable doubt.


The judge instructed the jury on specific intent as follows:

The crimes charged in this case are serious crimes which require proof of specific intent before the defendant can be convicted. Specific intent, as the term implies, means more than the general intent to commit the act. To establish specific intent the government must prove that the defendant knowingly did an act which the law forbids, purposely intending to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case.

An act or failure to act is "knowingly" done, if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.