USA V. MICHAEL IOANE, No. 12-10068 (9th Cir. 2013)

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FILED MAY 23 2013 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-10068 D.C. No. 1:09-cr-00142-LJO-3 v. MEMORANDUM * MICHAEL S. IOANE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of California Lawrence J. O Neill, District Judge, Presiding Argued and Submitted April 18, 2013 San Francisco, California Before: GOODWIN, O SCANNLAIN, and N.R. SMITH, Circuit Judges. Michael Ioane appeals his convictions and sentence for federal tax fraud conspiracy, 18 U.S.C. § 371, and fraudulent presentation of fictitious United States financial instruments, id. § 514(a)(2). We affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The district court s June 2010 continuance and exclusion of time under the Speedy Trial Act, id. § 3161, were specifically limited in time and justified on the record with reference to the facts as of the time the delay [was] ordered. United States v. Lewis, 611 F.3d 1172, 1176 (9th Cir. 2010); 18 U.S.C. § 3161(h)(7). In entering the continuance, the district court consulted all counsel, including counsel for Ioane s co-defendants, and conduct[ed] an appropriate inquiry on the record to determine when all the defendants could be tried. United States v. Lloyd, 125 F.3d 1263, 1269 (9th Cir. 1997). Trying Ioane s co-defendants eventually proved unnecessary, but at the time the delay was ordered, Lewis, 611 F.3d at 1176, the continuance and exclusion were justified. The other challenged continuances and exclusions under § 3161(h)(7) were not clearly erroneous. See United States v. Alvarez-Perez, 629 F.3d 1053, 1056 57 (9th Cir. 2010). We review the district court s denial of Ioane s motion to suppress evidence de novo, see United States v. I.E.V., 705 F.3d 430, 434 (9th Cir. 2012), and conclude that in these circumstances, the challenged search warrant was not impermissibly overbroad. The warrant specified dates, individuals, and corporate parties, and contained a reasonably precise delineation of the types of records to be seized; it was not a laundry list. See United States v. Bridges, 344 F.3d 1010, -2- 1017 18 (9th Cir. 2003); United States v. Rude, 88 F.3d 1538, 1551 (9th Cir. 1996). Ioane s claim of insufficient evidence to support the § 514(a)(2) convictions lacks merit. Assessing the evidence in the light most favorable to the prosecution, United States v. Stewart, 420 F.3d 1007, 1014 15 (9th Cir. 2005), the Bills of Exchange that Ioane prepared fall well within the scope of § 514(a)(2). The Bills statements of apparent value, serial numbers, dates, and references to the Department of Treasury Foreign Letters of Credit Division are akin to the attributes described in United States v. Howick, 263 F.3d 1056, 1068 (9th Cir. 2001) (setting forth a non-exhaustive list of attributes in instruments subject to § 514(a)(2)). Ioane s instructional-error claims also fail. The district court s initial instructions regarding conspiracy to defraud were consistent with the definition of § 371 conspiracy in United States v. Caldwell, 989 F.2d 1056, 1058 59 (9th Cir. 1993), and our model § 371 instruction, and they did not constructively amend Ioane s indictment. See 989 F.2d at 1058; 9th Cir. Model Crim. Jury Instr. No. 8.21. In another portion of the conspiracy instructions, the district court erroneously discussed liability under Pinkerton v. United States, 328 U.S. 640 (1946). But because Ioane failed to object, we review for plain error. See United -3- States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir. 2006). Even assuming that the instructional error affected Ioane s substantial rights, the overwhelming and convincing evidence, including detailed testimony from Ioane s alleged coconspirator, demonstrates that a different decision by the jury would be extremely unlikely. United States v. Perez, 116 F.3d 840, 847 48 (9th Cir. 1997) (en banc); see also United States v. Morfin, 151 F.3d 1149, 1151 (9th Cir. 1998). Turning to sentencing, we review the district court s loss calculation methods de novo and the determination of the amount for clear error. See United States v. Ali, 620 F.3d 1062, 1073 (9th Cir. 2010). The method of calculating Ioane s sentencing loss was appropriate and similar to that discussed in Ali. See id. And it was hardly illogical or implausible to conclude that Ioane intended a $1.3 million loss, given the IRS Notice of Deficiency and the detailed testimony about Ioane s misconduct after receiving that Notice. The district court committed no clear error in concluding that Ioane was a leader or manager, and the court did not abuse its discretion in applying a leaderorganizer sentencing enhancement. See United States v. Yi, 704 F.3d 800, 807 08 (9th Cir. 2013). Evidence at trial indicated that, among other things, Ioane directed the filing of false property liens and built many fraudulent trusts used for tax- -4- evasion purposes. When referring to Ioane s role in creating the fraudulent trusts, Ioane s alleged co-conspirator called him the captain of the ships. AFFIRMED. -5-

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