                                                                              FILED
                           NOT FOR PUBLICATION                                APR 30 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10110

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00432-EJG-3

  v.
                                                 MEMORANDUM*
GABRIEL RICHARD VIRAMONTES,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                 Edward J. Garcia, Senior District Judge, Presiding

                      Argued and Submitted March 10, 2014
                           San Francisco, California

Before: NOONAN, THOMAS, and BERZON, Circuit Judges.

       Gabriel Richard Viramontes appeals from his conviction following a jury

trial on six counts of bank fraud and seven counts of mail fraud, and from the fifty-

seven month prison term imposed by the district court.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The district court did not err by refusing to instruct the jury that a

defendant’s mere presence at the scene of a crime or knowledge that a crime is

being committed is not sufficient to establish that the defendant committed the

crime. “If the government’s case is based on more than just a defendant’s

presence, and the jury is properly instructed on all elements of the crime, then a

‘mere presence’ instruction is unnecessary.” United States v. Negrete-Gonzales,

966 F.2d 1277, 1282 (9th Cir. 1992). Viramontes has not disputed that the judge

properly instructed the jury on the elements of the charged crimes. And the

government presented evidence that Viramontes’s involvement in the crimes went

beyond his presence at meetings where Martin pitched the scheme and knowledge

of Martin’s fraud and misrepresentations. Among other things, the government

offered evidence that: Viramontes taught Martin how to carry out the scheme,

including how to make fraudulent representations to lenders to obtain full

financing for home purchases; Viramontes actively pitched the scheme to

investors, including to Oliveras; and Viramontes actively participated in the

recruitment of a new broker, Gallo, and explained the scheme to him, including

how fraudulently to obtain multiple full-financing home loans with the same

borrower in the same month.




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      Accordingly, the district court was not required to give a “mere presence”

instruction.

      2. The district court properly admitted the evidence regarding the loan

transaction involving Ben Viramontes under Federal Rule of Evidence 404(b),

because it tended to show Viramontes’s knowledge and intent in committing the

charged crimes. The Ben Viramontes loan transaction involved similar

misrepresentations to those in the charged offenses— for instance, that Ben

Viramontes would live in the purchased house. As in the charged offenses, the

misrepresentations were made to obtain a loan with one-hundred-percent financing.

And, as in the charged offenses, Viramontes approached the straw borrower

because the borrower had a good credit score, which Viramontes could use to

qualify for the mortgage.

      In addition, the evidence was properly admitted under Federal Rule of

Evidence 403. It was highly probative on the issues of intent and knowledge,

considerations outweighing the prejudice alleged by Viramontes.

      3. Viewing the evidence in the light most favorable to the prosecution,

United States v. Bennett, 621 F.3d 1131, 1135 (9th Cir. 2010), the government

offered proof sufficient to support conviction on the bank fraud charges. There

was sufficient evidence for the jury to conclude that Viramontes had the requisite


                                         3
intent to defraud banks by making false statements in the straw buyers’ loan

applications to qualify them for a loan without a down payment. That evidence

included: Martin’s testimony that Viramontes had the original idea for the scheme

and explained to him how to get multiple properties without paying a down

payment; Martin’s testimony that when he and Viramontes were employed at

Ameriquest, loan officers there were trained that one hundred percent financing

loans were only available for borrowers seeking to purchase primary residences,

not investment properties; testimony by Martin and Gallo that Viramontes

explained to Gallo “how to fund multiple loans in the same month with the same

borrower” in a way that the banks would be unaware of the multiplicity “until

essentially it is too late,” including that a “a buyer would be able to purchase

multiple properties” because “[w]e would classify them as owner-occupied to get

the 100 percent financing”; Ben Viramontes’s testimony that Viramontes had Ben

sign the loan documents for the purchase of Viramontes’s own home using a one

hundred percent financing loan; and testimony supporting the inference that

Viramontes knew that the straw buyers were not going to live in the houses

purchased.

      4. There was also sufficient evidence submitted to support conviction on the

mail fraud charges. The charged mailings were “incident to an essential part of the


                                          4
scheme, or a step in [the] plot.” Schmuck v. United States, 489 U.S. 705, 710-11

(1989) (internal quotation marks and citations omitted). Each mailing was integral

to the closing of escrow on the homes purchased by the straw buyers. It was only

after escrow closed that Viramontes and the others could receive their profits.

      5. The district court properly imposed a four-level increase in Viramontes’s

offense level on the basis that he “was an organizer or leader of a criminal activity

that involved five or more participants or was otherwise extensive.” U.S.S.G. §

3B1.1(a). The district court’s finding that Viramontes was a leader or organizer

was supported by a preponderance of the evidence. United States v. Avila, 95 F.3d

887, 889 (9th Cir. 1996). This evidence showed not only that Viramontes was

“more culpable than others who participated in the crime,” but also that he “was

responsible for organizing others for the purposes of carrying out the crime.” Id.

(internal quotation marks and citation omitted). There was evidence in the record

that, in addition to proposing the scheme, Viramontes taught it to Martin, arranged

for Martin, Fellini, and Viramontes to work together, and participated in seeking a

broker, Gallo, as well as some of the straw buyers. Viramontes was responsible for

recruiting and managing renters — although he did not actually carry out this

responsibility — and he placated the straw buyers to keep the scheme going.

There was, in addition, testimony that Viramontes and Martin equally shared the


                                          5
bulk of the proceeds of the scheme, while their co-perpetrators received

significantly less. Although Martin was also a leader or organizer of the scheme,

“[t]here can, of course, be more than one person who qualifies as a leader or

organizer of a criminal association or conspiracy.” U.S.S.G. § 3B1.1, Application

Note 4.

      Sufficient evidence also was introduced to support the conclusion that there

were at least five participants in the scheme. Viramontes’s sole objection before

the district court in this regard was that, because Huang and Warehime were not

criminally charged, they were not coparticipants in the scheme; he did not

challenge the factual findings in the presentence report about Huang and

Warehime’s participation. And a person need not be prosecuted to be a participant.

See U.S.S.G. § 3B1.1, Application Note 1; see also United States v. Hanousek, 176

F.3d 1116, 1125 (9th Cir. 1999). The district court was not required to make

specific findings as to this legal dispute. See United States v. Petri, 731 F.3d 833,

841 (9th Cir. 2013), cert. denied, 134 S. Ct. 681 (2013).

      Moreover, Viramontes has not disputed that at least he, Martin, Fellini, and

Gallo were participants. There was evidence introduced that Warehime and Huang

gave Viramontes and Martin illegal kickbacks and that at least Warehime knew

that the kickbacks were illegal. Also, both Warehime and Huang prepared and


                                          6
signed purchase agreements indicating that the straw buyers would occupy the

properties, even though they each knew that the straw buyers were buying multiple

properties and would not move into them. Accordingly, these two individuals

knowingly abetted the criminal conduct at issue here and qualified as participants.

See United States v. Smith, 719 F.3d 1120, 1126 (9th Cir. 2013).

      AFFIRMED.




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