                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 08 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10026

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00464-KHV-2

  v.
                                                 MEMORANDUM*
WAYNE A. MOUNTS,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10425

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00464-KHV-1

  v.

GINO CARLUCCI, AKA Gene David
Odice,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                 Kathryn H. Vratil, Chief District Judge, Presiding

                        Argued and Submitted July 9, 2014

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                               San Francisco, California

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Wayne Mounts and Gino Carlucci appeal from convictions relating to a

money laundering scheme. Because the parties are familiar with the facts of this

case, we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a), and we affirm the district court’s rulings and judgment.

       Sleeping Jurors

       The issue of the district court’s handling of the first note about sleeping

jurors is waived. See United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en

banc). Defendants participated in discussions about how to respond and

specifically objected to the district court’s suggestion to designate the jurors as

alternates. Pursuant to those discussions, the district court agreed to take other

steps to help the jurors stay alert.

       The district court’s response to the second note was not plainly erroneous.

“The trial judge has considerable discretion in determining whether to hold an

investigative hearing on allegations of jury misconduct and in defining its nature

and extent.” United States v. Barrett, 703 F.2d 1076, 1083 (9th Cir. 1983). Under

the facts here, defendants have not demonstrated that, based on controlling

authority, it would have been “clear or obvious” that the district court had an


                                           2
obligation to sua sponte question Juror No. 8 or designate this juror as an alternate.

See United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011). This is

especially true given that defendants’ counsel received a copy of the second note

and failed to raise the issue.

      Immunity

      Carlucci was required to cooperate with the Stem Genetics prosecution

pursuant to a plea agreement in that case. That such cooperation included

discussions touching on the present case does not establish that the government

promised immunity from prosecution in this case. Nor does the testimony of

Jeffrey Wright show that prosecutors promised immunity. At most, there may

have been an implied understanding between the parties that the government would

be prohibited from using information that Carlucci divulged or statements that he

made specifically in furtherance of his cooperation on the Stem Genetics matter.

Carlucci has not shown that the government actually used evidence against him

that was obtained from his cooperation in 2009 to prepare for the Stem Genetics

trial. Carlucci’s discussions with the government in February 2005 were not in

furtherance of his required cooperation under the 2004 plea agreement, but were

governed by a separate proffer agreement. Carlucci did not show that he had




                                          3
immunity for the conduct underlying the convictions in this case, or that the

government committed prosecutorial misconduct.

      Text Messages

      Carlucci only objected to the introduction of the text messages between

himself and Robert Garback under the rule of completeness. We review the rule of

completeness issue for an abuse of discretion, United States v. Collicott, 92 F.3d

973, 978, 983 (9th Cir. 1996), and Carlucci’s other arguments for plain error,

United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990).

      First, Carlucci’s “rule of completeness” objection fails because this is a rule

of admission, not exclusion. See Collicott, 92 F.3d at 983; United States v.

Soulard, 730 F.2d 1292, 1301 (9th Cir. 1984). Second, Carlucci’s contention that

the text messages lacked foundation is not supported by argument, Fed. R. App. P.

28(a)(8), and therefore falls far short of meeting the plain error standard. Third,

Carlucci’s argument that admission of the messages violated the Confrontation

Clause fails the plain error standard because Carlucci was not prevented from

cross-examining Garback about the texts, including why some of them were

apparently deleted. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

      Brandon Valero’s Testimony




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      Carlucci raises several arguments about the introduction of Valero’s out-of-

court statements at trial.

      First, he claims that no hearsay exception applied to the introduction of

statements made to Agents DiSalvo and Koritala. “We review the trial court’s

decision to admit evidence under a hearsay exception for an abuse of discretion.”

People of Territory of Guam v. Cepeda, 69 F.3d 369, 371 (9th Cir. 1995). The

admission of Valero’s out-of-court statements was not an abuse of discretion

because the statements fell generally under the hearsay exception for statements

“of a declarant’s then-existing state of mind,” including “emotional, sensory, or

physical condition.” Fed. R. Evid. 803(3). Carlucci does not argue that the

government admitted any specific statements that exceeded the state of mind

exception. Even assuming the district court erred in admitting some of these

statements, any error was harmless. Carlucci was not convicted on the witness

tampering count. While the district court did enhance Carlucci’s sentence for

obstruction of justice, Valero’s own grand jury testimony and the evidence of the

anonymous fax provided an adequate basis for an obstruction of justice finding.

      Second, Carlucci did not raise a Confrontation Clause argument to the

district court, so we review this argument for plain error. United States v. Gomez,

725 F.3d 1121, 1125 (9th Cir. 2013). On this record, it would not have been clear


                                         5
or obvious that Carlucci lacked an adequate prior opportunity to cross-examine

Valero about the statements he made to Agents DiSalvo and Koritala. This

argument does not meet the plain error standard.

      Third, Valero’s grand jury statements were not admitted for the truth of the

matter asserted but for impeachment purposes under Federal Rule of Evidence

804(b)(1). The Supreme Court has recognized that the Confrontation Clause “does

not bar the use of testimonial statements for purposes other than establishing the

truth of the matter asserted.” Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004)

(citing Tennessee v. Street, 471 U.S. 409, 414 (1985)).

      Marital Communications Privilege

      Because Carlucci’s counsel expressly disclaimed an objection regarding

marital privilege at the time Tracy Carlucci’s testimony was introduced in the

district court, this argument is waived. See Perez, 116 F.3d at 845; United States v.

Vo, 413 F.3d 1010, 1017 (9th Cir. 2005) (citing United States v. Figueroa-Paz, 468

F.2d 1055, 1057 (9th Cir. 1972)).

      Application of Guidelines Section 3C1.3

      Carlucci concedes that plain error review applies to this argument. Even if

United States Sentencing Guidelines § 2J1.7 should have been applied to Carlucci

instead of § 3C1.3, the earlier provision was substantively identical. See U.S.S.G.


                                          6
§ 2J1.7 (2003). Carlucci provides no reason to think that application of § 3C1.3

created a meaningful risk of a higher sentence. See Peugh v. United States, 133 S.

Ct. 2072, 2084 (2013). He has therefore not met his burden of showing that any

error by the district court affected his substantial rights or “seriously affected the

fairness, integrity, or public reputation of judicial proceedings.” Gonzalez-

Aparicio, 663 F.3d at 428 (citations and internal quotation marks omitted).

      Guidelines § 3C1.3 was applicable to Carlucci. Even if the provision was

only applicable to the money laundering conspiracy, the evidence supports the

district court’s conclusion that the conspiracy continued beyond December 2004.

Application of the enhancement would not be precluded even if Carlucci’s actions

in furtherance of this scheme took place before that date. See United States v.

Inafuku, 938 F.2d 972, 973 (9th Cir. 1991) (“Conspiracy is a continuing offense,

which is charged and punished as one crime from beginning to end.”). Carlucci

does not argue that he affirmatively withdrew from the conspiracy before 2005.

Because conspiracy is a continuing offense, evidence that the conspiracy was

carried on by any party past December 2004 demonstrates that the crime for which

Carlucci was convicted was not complete by that date. Moreover, almost by

definition, Carlucci’s concession that “the dates of the conspiracy are not clear”




                                           7
means that the district court did not commit clear error as to the dates of the

conspiracy.

      Application of Guidelines Section 2B1.1(b)(1)(I)

      Carlucci concedes that inclusion of the $20,000 flight alone would raise the

loss attributable to his crimes above $1,000,000. The plain language of the

Guidelines provision does not preclude the attribution of losses that may have been

ill-gotten in the first place. Sentencing goals include deterrence and addressing

culpability, and so neither of the two rationales for the common-law defense of in

pari delicto excuse Carlucci’s conduct here. See Bateman Eichler, Hill Richards,

Inc. v. Berner, 472 U.S. 299, 306 (1985). Carlucci cannot show that the $20,000

loss from the flight was not properly counted under the Guidelines, so the loss

attributable to his crimes exceeds $1,000,000.

      Restitution for Victims

      Because Carlucci did not object in district court on the basis he advances

here, plain error review applies. “In light of the remedial purposes underlying the

[Mandatory Victims Restitution Act], our precedent grants district courts a degree

of flexibility in accounting for a victim’s complete losses.” United States v.

Waknine, 543 F.3d 546, 557 (9th Cir. 2008) (citation and internal quotation marks




                                           8
omitted). The district court must establish facts underlying restitution by a

preponderance of the evidence. Id.; 18 U.S.C. § 3664(3).

      It would not have been clear or obvious to the district court that the MVRA

did not permit the investors in Flickinger’s scheme to be treated as Carlucci’s

victims as well. See 18 U.S.C. § 3663A(a)(2). The district court’s conclusion that

Carlucci essentially made Flickinger’s victims his own by unlawfully obtaining

their money was not plainly erroneous.

      Obstruction of Justice

      Contrary to Carlucci’s assertion, the district court’s application of

Guidelines § 3C1.1 was based primarily on Carlucci’s conduct, not on the actual

effect of this conduct on Valero. Evidence concerning an anonymous fax sent to

Valero, and Valero’s reaction to it, satisfied the preponderance of the evidence

standard for applying this enhancement. See United States v. Guzman-Mata, 579

F.3d 1065, 1072 (9th Cir. 2009).

      Disparate Sentence

      The district court found that “Flickinger and [Carlucci] stand in dramatically

different circumstances in terms of their role in this case.” Carlucci has not shown

that this finding was clearly erroneous. United States v. Jordan, 256 F.3d 922, 926

(9th Cir. 2001). Accepting this finding as true, the district court did not abuse its


                                           9
discretion when it arrived at Carlucci’s sentence after weighing the multiple

considerations described in 18 U.S.C. § 3553(a).

      Carlucci’s Lack of Remorse

      Carlucci cites no controlling authority supporting his argument on this issue.

The argument is directly foreclosed by United States v. Smith, 424 F.3d 992,

1016–17 (9th Cir. 2005).

      Conclusion

      Based on the foregoing, we AFFIRM the district court’s judgment as to all

issues in these appeals.




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