                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                            FOR THE NINTH CIRCUIT                           FEB 12 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 08-50427

              Plaintiff - Appellee,              D.C. No. 3:03-cr-00850-W-15

  v.
                                                 MEMORANDUM *
KENNETH WAYNE MOORE,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    Thomas J. Whelan, District Judge, Presiding

                           Submitted February 10, 2010 **
                               Pasadena, California

Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, *** District
Judge.




        *
             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).
        ***
            The Honorable Jeremy D. Fogel, United States District Judge for the
Northern District of California, sitting by designation.
      Kennth Moore appeals his jury conviction and sentence for conspiracy, wire

fraud, and money laundering. We have jurisdiction over Moore’s appeal of the

jury verdict under 28 U.S.C. § 1291 and over Moore’s appeal of his sentence under

18 U.S.C. § 3742(a).

      Moore did not move for judgment of acquittal, so the sufficiency of the

evidence to support his conviction is reviewed for plain error. United States v.

DeGeorge, 380 F.3d 1203, 1216–17 (9th Cir. 2004). Moore’s sole argument

regarding sufficiency of the evidence is that the government failed to prove that he

had the specific intent to defraud, and therefore the jury could not convict him.

      There was ample evidence. For example, after Harrell’s scheme bankrupted

Moore’s own construction company, Moore went to work for Harrell and was paid

more than $16,000 per month in cash and other benefits to recruit other victims.

Moore told victims that there was no risk in investing in the scheme, that no one

had ever lost money on the deal, and that he was very happy with the results of his

own investment, all of which he knew to be untrue. He was caught on tape

approving Harrell’s plan to create shell companies to avoid liability for money

laundering and securities violations. Viewing this and the other incriminating

evidence in the light most favorable to the government, a rational juror could

conclude that Moore participated in the scheme knowing of its fraudulent character


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and intending to deprive others of their money or property. See Carpenter v.

United States, 484 U.S. 19, 27 (1987) (“Sections 1341 and 1343 reach any scheme

to deprive another of money or property by means of false or fraudulent pretenses,

representations, or promises.”).

      Moore next contends that his Sixth Amendment right to confront the

witnesses against him was violated. The district court admitted into evidence

audio recordings made by a government informant, Bob Smith, on which

coconspirator Harrell made incriminating statements. Moore argues that Smith’s

and Harrell’s statements were testimonial hearsay under Crawford v. Washington,

541 U.S. 36 (2004). Harrell’s statements were admissible as statements of a

coconspirator. United States v. Bridgeforth, 441 F.3d 864, 869 n.1 (9th Cir. 2006)

(“[C]o-conspirator statements are not testimonial.”). Smith’s statements were used

solely to provide context for Harrell’s statements about the logistics of the

operation, so they are not hearsay and do not run afoul of the Confrontation Clause

under Crawford, 541 U.S. at 59 n.9 (“The [Confrontation] Clause . . . does not bar

the use of testimonial statements for purposes other than establishing the truth of

the matter asserted.”). See also United States v. Whitman, 771 F.2d 1348, 1352

(9th Cir. 1985) (concluding that an informant’s statements were admissible as

non-hearsay to place a conspirator’s statements in context).


                                           3
      The district court did not err in admitting Moore’s tax returns for years

besides 2001, the only year the government charged Moore with tax evasion. The

other years’ returns were relevant to rebut the argument that Moore’s failure to

report income in 2001 was accidental or due to his tax preparer’s error. United

States v. Snow, 529 F.2d 224, 226 (9th Cir. 1976) (holding that prior failures to file

returns are admissible to show willfulness in a tax fraud case). Furthermore,

Moore did not argue below, as he does now, that the returns for the other years

were inadmissible under Rules 403 or 404(b). There was no plain error.

      The sentence imposed by the district court was not substantively

unreasonable. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

Moore was a major participant in a fraud that bilked investors of tens of millions of

dollars. The district judge did not ignore Moore’s personal history and

characteristics in deciding upon his sentence. 18 U.S.C. § 3553(a)(1). To the

contrary, he specifically considered them in imposing a below-Guideline sentence.

Nor did the sentence imposed by the district court create unwarranted disparities

between Moore and his codefendants. 18 U.S.C. § 3553(a)(6). Other defendants

who had helped to recruit new victims with promises of a risk-free, high-return

investment, as Moore had, received similar sentences.

      AFFIRMED.


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