United States v. Tamman, No. 13-50463 (9th Cir. 2015)
Annotate this CaseDefendant was convicted and sentenced for conspiracy to obstruct justice, accessory after the fact to mail fraud and securities law violations, altering documents to influence a federal investigation, and aiding and abetting false testimony at an SEC deposition. A panel of the Ninth Circuit affirmed, holding (1) the district court did not err at sentencing by applying both the “Broker-Dealer” enhancement and the “Special Skill” enhancement under the Sentencing Guidelines; (2) the district court did not err in calculating loss and victim amounts, as required under the Sentencing Guidelines; (3) Defendant was competent to waive his right to a jury trial, and his waiver was knowing and intelligent; and (4) the district court did not plainly err in (a) excluding a non-lawyer’s testimony reciting facts and the legal conclusion that Defendant did not break the law; (b) determining that the district court was capable of understanding an expert’s opinion regarding Defendant’s professional and ethical duties as an attorney; and (c) admitting coconspirator nonhearsay testimony.
Court Description: Criminal Law. The panel affirmed a conviction and sentence for conspiracy to obstruct justice, accessory after the fact to mail fraud and securities law violations, altering documents to influence a federal investigation, and aiding and abetting false testimony at an SEC deposition. The panel held that the Sentencing Guidelines commentary prohibiting simultaneous application of the Broker-Dealer enhancement under U.S.S.G. § 2B1.1(b)(18)(A) (2012) (2014 version at U.S.S.G. § 2B1.1(b)(19)(A)) and the Special Skill enhancement under U.S.S.G. § 3B1.3 does not apply when the Broker- Dealer enhancement pertains specifically to a principal’s offense and the Special Skill enhancement pertains to a defendant-accessory’s offense. The panel held that in calculating a loss figure greater than $20 million under U.S.S.G. § 2B1.1(b)(1), the district court correctly held that the full measure of the loss inflicted by a co-defendant’s crime would have been foreseeable to the defendant despite his status as a mere accessory to that crime. The panel likewise held that in finding that the defendant’s crime involved more than 50 victims under U.S.S.G. § 2B1.1(b)(2), the district court did not err by including victims of the co-defendant’s crime, where the defendant did UNITED STATES V. TAMMAN 3 not have actual knowledge of those victims but the victims were reasonably foreseeable to him. The panel held that the district court did not err in finding that the defendant, a practicing attorney and partner at a major law firm, was competent to waive his jury trial and that his waiver was knowing and intelligent. The panel held that the district court did not plainly err (1) in excluding a non-lawyer’s testimony reciting facts and the legal conclusion that the defendant acted in conformity with unidentified SEC rules and regulations and otherwise did not break the law; (2) in determining that the district court was capable of understanding, through a written proffer in a trial brief rather than in live testimony in this bench trial, an expert’s opinion regarding the defendant’s professional and ethical duties as an attorney; and (3) in admitting coconspirator nonhearsay testimony.
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