                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            DEC 06 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10102

              Plaintiff-Appellee,                D.C. No.
                                                 1:13-cr-00362-AWI-BAM-3
 v.

LEROY DONOVAN COMBS,                             MEMORANDUM*

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   16-10115

              Plaintiff-Appellee,                D.C. No.
                                                 1:13-cr-00362-AWI-BAM-4
 v.

CHARLES WAYNE UPTERGROVE,

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   16-10123

              Plaintiff-Appellee,                D.C. No.
                                                 1:13-cr-00362-AWI-BAM-5
 v.


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
LADONNA LEE MOON,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                    Argued and Submitted November 16, 2017
                            San Francisco, California

Before: W. FLETCHER and PAEZ, Circuit Judges, and WILKEN, District
Judge.**

      Leroy Donovan Combs, Charles Wayne Uptergrove and Ladonna Lee Moon

appeal their convictions under 18 U.S.C. § 287. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      1. All defendants: The district court did not abuse its discretion in denying

the defendants’ mistrial motions based on co-defendant Gaylene Bolanos’

courtroom outburst in front of the jury. See United States v. Sarkisian, 197 F.3d

966, 981 (9th Cir. 1999). First, the outburst was not inherently prejudicial. See

Holbrook v. Flynn, 475 U.S. 560, 570 (1986). In contrast to the “truly rare” set of

circumstances in United States v. Mannie, 509 F.3d 851, 857 (7th Cir. 2007), the


      **
        The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
                                          2
jury in this case witnessed only a single two- to three-minute outburst from a co-

defendant, rather than a “violent courtroom brawl,” or a “campaign of

intimidation.”

      Second, the district court took reasonable steps to ensure the fairness of the

proceedings and jury impartiality. See United States v. McCormac, 309 F.3d 623,

626 (9th Cir. 2002) (holding a “district court’s assessment of the jury’s ability to

remain impartial despite the explosion of defiance from [a] defendant is accorded

substantial weight because the district court is in the best position to ascertain

whether an event is prejudicial”). The court read the jury a cautionary instruction

prepared by defense counsel, and approved by all counsel, and gave the jurors an

opportunity to express whether the outburst impacted their ability to be fair to all

defendants. No juror expressed any concern over his or her ability to be fair and

impartial.

      2. Uptergrove and Moon: The district court properly declined to instruct

the jury that a conviction for making a false claim under § 287 requires proof of

willfulness or intent to defraud. Under Ninth Circuit authority, an intent to defraud

is not an element of a charge under the false prong of § 287. See United States v.

Milton, 602 F.2d 231, 234 (9th Cir. 1979) (holding “the jury need not receive an

instruction on intent to defraud the government, nor is it an element of the offense,


                                            3
when the government prosecutes for the submission of false claims in violation of

18 U.S.C. § 287”). Uptergrove and Moon fail to cite binding authority requiring

the district court to instruct the jury on a good faith defense against false claim

charges under § 287.

      3. Combs: The district court committed no error in sentencing Combs to 45

months’ imprisonment. We review a sentence for reasonableness, and “only a

procedurally erroneous or substantively unreasonable sentence will be set aside.”

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district

court’s reference to Combs’ “long, long history of failing to comply with the tax

laws” is well supported by the undisputed presentence report as well as by

evidence in the trial record, upon which the district court was permitted to rely in

fashioning an appropriate sentence. See United States v. Fitch, 659 F.3d 788, 790-

791 (9th Cir. 2011).

      4. Uptergrove: The district court properly denied Uptergrove a two-level

reduction for acceptance of responsibility. The court’s actions were reasonable in

light of Uptergrove’s “decision to take the case to trial, where he vigorously denied

the ‘[knowingly]’ element of the offense.” United States v. Chastain, 84 F.3d 321,

324 (9th Cir. 1996). The record neither shows nor suggests that the district court

deemed Uptergrove ineligible for the reduction merely because he went to trial and


                                           4
contested his factual guilt. United States v. Cortes, 299 F.3d 1030, 1038 (9th Cir.

2002), United States v. Ochoa-Gaytan, 265 F.3d 837, 844 (9th Cir. 2001), and

United States v. McKinney, 15 F.3d 849, 853 (9th Cir. 1994), are therefore

distinguishable.

      5. Uptergrove: Uptergrove’s sentence was substantively reasonable. See

United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (en banc). The

district court carefully considered the 18 U.S.C. § 3553(a) factors and imposed a

reasonable sentence below the low end of the advisory Guidelines range.

      AFFIRMED.




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