                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 7 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    14-10527

                Plaintiff-Appellee,             D.C. No.
                                                2:10-cr-00377-WBS-1
 v.

JAMES BERGHUIS,                                 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 August 14, 2017
                            San Francisco, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and WATTERS,**
District Judge.

      A jury convicted James Berghuis of multiple counts of mail fraud and wire

fraud and one count of money laundering, in violation of 18 U.S.C. §§ 1341, 1343,

and 18 U.S.C. §§ 1957, 2. At sentencing, the government sought an obstruction of



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Susan P. Watters, United States District Judge for the
District of Montana, sitting by designation.
justice enhancement under U.S.S.G. § 3C1.1 based on Berghuis’ perjury in a

related civil case. The district court applied the enhancement and sentenced him to

168 months imprisonment. Berghuis appeals his conviction and his sentence. We

have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and

remand for resentencing.

      Berghuis’ sufficiency of the evidence challenges to his convictions on

Counts 1, 2, 3, 5, 6, 7, and 9, are reviewed for plain error because he failed to make

a Rule 29 motion for judgment of acquittal. United States v. Gonzalez, 528 F.3d

1207, 1210-11 (9th Cir. 2008). For Berghuis to be found guilty of mail and wire

fraud, the government was required to prove beyond a reasonable doubt that

Berghuis acted with the intent to defraud; that is, the intent to deceive or cheat. 18

U.S.C. §§ 1341, 1343; see also United States v. Sullivan, 522 F.3d 967, 974 (9th

Cir. 2008) (per curiam). A jury may find a scheme to defraud and specific intent to

defraud based solely on circumstantial evidence and the inferences drawn from it.

Id. Intent may be inferred from misrepresentations made by the defendant. United

States v. Jenkins, 633 F.3d 788, 804 (9th Cir. 2011).

      The jury heard testimony that Berghuis told each investor that he was going

to use the investor’s money for real estate and bridge loans, and instead, used the

money to purchase cars, pay off credit cards, and pay off other investors. That

testimony was sufficient evidence to prove that Berghuis “intentionally deprived


                                          2                                    14-10527
[his] victims of the opportunity to decide for themselves, on the basis of true and

accurate information, whether or not to invest,” which is all that is required to

establish an intent to defraud. United States v. Treadwell, 593 F.3d 990, 999 (9th

Cir. 2010).

      Berghuis did not object to the district court’s use of the model jury

instructions or offer an alternative instruction. Moreover, the government’s case

was a half-truths case, not an omissions case. Accordingly, the district court did

not commit plain error by not instructing the jury about fiduciary duty. United

States v. Lloyd, 807 F.3d 1128, 1153 (9th Cir. 2015). We affirm Berghuis’

conviction.

      To support an “obstruction of justice” enhancement under U.S.S.G. § 3C1.1,

the government had to establish that the obstructive conduct (1) “occurred with

respect to the investigation, prosecution or sentencing of the defendant’s instant

offense of conviction;” (2) “related to . . . the defendant’s offense of conviction and

any relevant conduct”; and (3) was “material.” Id. § 3C1.1 cmt. n. 1; United States

v. Herrera-Rivera, 832 F.3d 1166, 1175 (9th Cir. 2016). The district court must

make explicit findings on each element of obstruction of justice. See id. Because

the district court failed to make findings as to whether the obstructive conduct

occurred with respect to the investigation, prosecution, or sentencing and as to the

materiality of the obstructive conduct, we must vacate Berghuis’ sentence and


                                          3                                    14-10527
remand to allow the district court to make such findings. United States v. Jimenez-

Ortega, 472 F.3d 1102, 1103-04 (9th Cir. 2007) (per curiam). Consequently, we

do not reach Berghuis’ argument that the district court abused its discretion by

varying upward from the guidelines and sentencing him to 168 months of

imprisonment. See United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir. 2006).

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED to the

district court for resentencing consistent with this opinion. Each party shall bear

its own costs on appeal.




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