                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUL 24 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

____________________________________
UNITED STATES OF AMERICA,                           No. 15-10540

      Plaintiff - Appellee,                         D.C. No. 2:11-CR-447-WBS
v.

HUBERT ROTTEVEEL                                    MEMORANDUM*

      Defendant - Appellant.
____________________________________

                   Appeal from the United States District Court
                      for the Eastern District of California
                   William B. Shubb, District Judge, Presiding

                       Argued and Submitted July 13, 2017
                           San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and ROBRENO,** District Judge

      Hubert Rotteveel appeals his conviction for mail fraud affecting a financial

institution under 18 U.S.C. § 1341, in connection with a scheme in which he

fraudulently obtained mortgages for investment properties. We affirm.




*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
      The Honorable Eduardo C. Robreno, United States District Court Judge for
the Eastern District of Pennsylvania, sitting by designation.
      1.     Sufficient evidence supported Rotteveel’s conviction. Viewing the

facts in the light most favorable to the government, a rational trier of fact could

have found that: (a) Rotteveel’s fraudulent statements to the lending bank were

material; (b) the statements affected the lending bank; and (c) the mailing of the

recorded deed from the county recorder to the lending bank was an essential part of

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

      The prosecution was not required to present specific testimony from the

lending bank that the bank considered Rotteveel’s statements to be material and

capable of influencing its decisions. See United States v. Peterson, 538 F.3d 1064,

1072 (9th Cir. 2008). This inquiry is objective in nature and requires only that the

jury determine Rotteveel’s statements were capable of influencing such a lender.

See United States v. Jenkins, 633 F.3d 788, 802 n.3 (9th Cir. 2011) (providing that

“[t]here is no requirement that the statements actually influence those to whom

they are addressed”); United States v. Blixt, 548 F.3d 882, 889 (9th Cir. 2008)

(“[A] misrepresentation may be material without inducing any actual reliance.

What is important is the intent of the person making the statement that it be in

furtherance of some fraudulent purpose.”) (internal quotation marks omitted). The

government presented testimony from loan professionals that established

Rotteveel’s statements were capable of influencing the bank’s decision to issue a




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loan. This evidence was sufficient for a jury to find the materiality element

satisfied.

       The government was also not required to show Rotteveel’s statements

actually caused the bank to suffer a loss. Rather, the government only had to show

that Rotteveel’s misrepresentations objectively increased the bank’s risk of loss.

United States v. Stargell, 738 F.3d 1018, 1022 (9th Cir. 2013). The government

presented testimony that the bank would not have issued the loan had it known it

was lending more than 100 percent of an investment property’s value.

Additionally, there were misrepresentations about the debtor’s income and assets.

This evidence was sufficient for a jury to find the bank was affected.

       The mailing of the recorded deed from the county recorder to the lending

bank was incident to an essential part of the scheme because it evidenced to the

lending bank that its loan was secured by the collateral. Without this confirmation,

banks would not issue mortgages and Rotteveel’s scheme would have collapsed.

See Schmuck v. United States, 489 U.S. 705, 711-12 (1989).

       2.    The district court did not abuse its discretion when answering the

jury’s questions. United States v. Verduzco, 373 F.3d 1022, 1030 n.3 (9th Cir.

2004). Had the district court provided substantive answers to the jury’s first two

questions, it would have run the risk of usurping the jury’s fact finding role and




                                          3
engaging in a discussion of the meaning of specific evidence. See United States v.

Walker, 575 F.2d 209, 214 (9th Cir. 1978).

      3.     Since Rotteveel and his counsel were present for, and participated in,

all discussions regarding the jury questions, and were present when the district

court answered them, neither Rotteveel’s due process rights nor his statutory rights

were violated. See Frantz v. Hazey, 533 F.3d 724, 743 (9th Cir. 2008); United

States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996). Rotteveel and his

counsel had a sufficient opportunity to provide a proposed response to the second

jury question, either in writing (as the government did) or orally during the

courtroom discussion of the second and third question. However, even if we

assume a sufficient opportunity was not provided, any error was harmless, see

United States v. Frazin, 780 F.2d 1451, 1469-70 (9th Cir. 1986), because the

district court answered the question properly by redirecting the jury to the evidence

and the jury instructions. See Walker, 575 F.2d at 214.

      4.     Considering the totality of the circumstances, the district court did not

coerce the jury into continuing deliberations after it was allegedly deadlocked. See

Jiminez v. Myers, 40 F.3d 976, 980 (9th Cir. 1993). When the jury indicated that it

currently did not have unanimous agreement on the verdict, the district court

properly asked if it could provide any additional assistive instructions on the law.

See Bollenbach v. United States, 326 U.S. 607, 612-13 (1946) (recognizing a


                                          4
judge’s duty to address the jury’s questions). The district court also properly sent

the jury back to deliberate for a short period of time while the court considered the

questions the foreperson asked in response to the court’s inquiry. The evidence

shows that the jury requested more time to deliberate and, at the end of that day,

requested that it be allowed to return on the next business day. This evidence

shows a lack of coercion.

      AFFIRMED.




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