                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 20 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50366

              Plaintiff-Appellee,                D.C. No.
                                                 8:15-cr-00080-DOC-3
 v.

MARK ALAN GELAZELA,                              MEMORANDUM*

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   18-50006

              Plaintiff-Appellee,                D.C. No.
                                                 8:15-cr-00080-DOC-3
 v.

MARK GELAZELA, AKA Mark Alan
Galezela, AKA Mark Gelazel, AKA Mark
A. Gelazela, AKA Mark Alan Gelazela,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                     Argued and Submitted September 11, 2019
                               Pasadena, California

Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.

      Appellant Mark Gelazela (Gelazela) appeals his convictions for wire fraud

premised on a scheme to defraud investors in bank guarantees.

      The district court correctly denied Gelazela’s motion to dismiss the

indictment as time-barred because the indictment alleged that part of the scheme to

defraud was lulling the victims, and held that the indictment was filed within the

five-year statute of limitations based on lulling communications to the victims that

were part of the scheme to defraud. See United States v. Lane, 474 U.S. 438, 451-

52 (1986) (explaining that “[m]ailings occurring after receipt of the goods obtained

by fraud are within the statute if they were designed to lull the victims into a false

sense of security, postpone their ultimate complaint to the authorities, and therefore

make the apprehension of the defendants less likely than if no mailings had taken

place”) (citations and internal quotation marks omitted); see also United States v.

Tanke, 743 F.3d 1296, 1305 (9th Cir. 2014) (articulating that “[a]llowance must be

made for the reality that embezzlements and other schemes to defraud are often

open-ended, opportunistic enterprises. They may evolve over time, contemplate no

fixed end date or adapt to changed circumstances.”) (citations, alterations, and



                                           2
internal quotation marks omitted). Because the lulling communications were wires

in furtherance of the scheme, the continuing offense doctrine was not applicable.

See United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991), overruled on other

grounds by United States v. Scarano, 76 F.3d 1471, 1477 (9th Cir. 1996).

      The district court properly instructed the jury concerning the requisite

elements for wire fraud, and that the jury was required to determine that the lulling

communications were part of the scheme to defraud. See Tanke, 743 F.3d at 1305

(holding that “mailings designed to avoid detection or responsibility for a

fraudulent scheme fall within the mail fraud statute when they are sent before the

scheme is completed. To determine when a scheme ends, we look to the scope of

the scheme as devised by the perpetrator”).1 The district court also adequately

responded to the jury’s question regarding the materiality of the lulling

communications because the instruction on materiality was not ambiguous. See id.

      AFFIRMED.




      1
         “It is well settled that cases construing the mail fraud and wire fraud
statutes are applicable to either.” Tanke, 743 F.3d at 1303 n.3 (citation omitted).
                                           3
