                               NOT FOR PUBLICATION                       FILED
                        UNITED STATES COURT OF APPEALS                    MAY 8 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                           No. 13-50336

           Plaintiff - Appellee,                    D.C. No. 2:11-cr-00834-JAK-1

  v.
                                                    MEMORANDUM*
MATTHEW TAYLOR,

           Defendant - Appellant.

                       Appeal from the United States District Court
                          for the Central District of California
                       John A. Kronstadt, District Judge, Presiding

                                   Submitted May 4, 2015**
                                     Pasadena, California

Before: FISHER, BEA, and FRIEDLAND, Circuit Judges.

       Matthew Taylor appeals his conviction for one count of wire fraud, 18

U.S.C. § 1343, one count of possession of stolen property, 18 U.S.C. § 2315, two

counts of tax evasion, 26 U.S.C. § 7201, and one count of structured money


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
transactions, 31 U.S.C. § 5324(a). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

                                          I.

      Taylor argues there was insufficient evidence to support his convictions for

wire fraud, possession of stolen property, and tax evasion. Viewing the evidence

in the light most favorable to the prosecution, the jury could reasonably conclude

that the prosecution proved the elements for each of the counts beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

                                          II.

      Next, Taylor challenges the consequences of his having been found to have

engaged in structuring. First, he argues that his due process rights were violated

when the district court revoked his pretrial release after it found probable cause

that he had committed the crime of structuring, and when it enhanced his sentence

because he had committed the crime of structuring while on pretrial release, 18

U.S.C. § 3147. Taylor also contends the forfeiture of his bail based on his

commission of structuring violated the Eighth Amendment. Taylor argues that

these consequences cannot arise out of a strict liability crime. His premise is false,

however, because structuring is a specific intent crime: a defendant must act “for

the purpose of evading . . . reporting requirements.” 31 U.S.C. § 5324(a); see also

United States v. Del Toro-Barboza, 673 F.3d 1136, 1144 (9th Cir. 2012) (stating


                                          2
that § 5324(c), which has the same mens rea language as § 5324(a), is a specific

intent crime).

      Second, Taylor argues that the revocation of his pretrial release prevented

him from preparing for trial, in violation of the Sixth Amendment. The district

court properly ensured that Taylor had access to his attorneys and means to review

evidence in preparation for trial, and Taylor has not identified any impediment that

violated his constitutional rights.

                                         III.

      Taylor also challenges two of the district court’s evidentiary rulings. First,

he argues that the district court’s refusal to allow him to introduce evidence

regarding the Malherbe painting, which he offered to rebut the government’s Rule

404(b) evidence, prevented him from presenting a defense. Even if the Malherbe

painting may have been in Taylor’s possession in June 2004, this fact did not

disprove that he had separately stolen the Mertz painting. Because the Malherbe

painting evidence did not rebut either the prior bad act or the charged conduct, was

not proper impeachment by contradiction evidence, and would likely have

confused the jury, the district court properly excluded it. See United States v.

Kincaid-Chauncey, 556 F.3d 923, 934 (9th Cir. 2009), abrogated on other grounds

by Skilling v. United States, 561 U.S. 358 (2010).

      Second, Taylor argues that the district court erred by failing to instruct the


                                          3
jury not to place undue emphasis on a statement the court read back during

deliberations. Even if the district court erred by failing to provide a no-undue-

emphasis instruction, the error did not affect Taylor’s substantial rights, because

the record contains ample other evidence from which the jury could have found

that Taylor intended to evade the reporting requirements. See United States v.

Stinson, 647 F.3d 1196, 1217-18 (9th Cir. 2011) (holding that, regardless of

whether allowing a read back was an error, it did not affect the defendant’s

substantial rights because there was sufficient other evidence on the point at issue).

                                         IV.

      Finally, we reject Taylor’s contentions of error in sentencing. First, because

there was sufficient evidence proving Taylor had earned the income in question,

the court did not err in calculating the tax loss amount based on this income.

      Second, the district court properly applied the sophisticated means

adjustment. Evidence adduced at trial showed Taylor used accounts named after

well-known corporations, despite having no affiliation with those corporations, to

make it more difficult to track the proceeds of the charged conduct.

      Third, the district court properly applied the three-level enhancement for

committing a crime while on pretrial release. See U.S. Sentencing Guidelines

Manual § 3C1.3. Contrary to Taylor’s assertion, this enhancement does not

duplicate the penalty provision in 18 U.S.C. § 3147 because § 3C1.3 merely


                                          4
implements § 3147 and must be applied if § 3147 is triggered. See U.S.

Sentencing Guidelines Manual § 3C1.3 cmt n.1.

       Fourth, the district court did not abuse its discretion in setting the restitution

amounts. See United States v. Anderson, 741 F.3d 938, 951 (9th Cir. 2013). The

district court properly calculated the amount of restitution owed to the IRS because

the government proved Taylor had earned the income in question. The district

court properly set a restitution amount of $20,000 for the Lucien Frank painting,

which is the amount the gallery would have received in a sale. See 18 U.S.C.

§ 3663(b) (“The [restitution] order may require that [a] defendant . . . pay an

amount equal to . . . the value of the property on the date of the damage, loss, or

destruction.”); United States v. Smith, 944 F.2d 618, 625 (9th Cir. 1991) (“Value

should therefore be measured by what the financial institution would have received

in a sale as of that date.”).

       Finally, the sentence was substantively reasonable. See United States v.

Treadwell, 593 F.3d 990, 1011-12 (9th Cir. 2010).

       AFFIRMED.




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