                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 01 2015

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

UNITED STATES OF AMERICA,                        No. 11-30379

              Plaintiff - Appellee,              D.C. No. 3:06-cr-000385-KI-1

       v.
                                                 MEMORANDUM*
JOHNNY BROWN, AKA Mickey,

              Defendant - Appellant.

                   Appeal from the United States District Court
                            for the District of Oregon
                     Garr M. King, District Judge, Presiding

                       Argued and Submitted March 3, 2015
                                Portland, Oregon

Before: FISHER, PAEZ and IKUTA, Circuit Judges.

      Johnny Brown appeals his conviction, 130-month sentence and $6.2 million

restitution order following his conviction by a jury of 14 counts of wire fraud,




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
making false statements to a financial institution and tax evasion.1 We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     The court did not violate Brown’s due process right to a fair trial by

precluding him from presenting closing argument regarding his absence of flight,

because Brown did not introduce evidence of his compliance with pretrial release.

See United States v. Miguel, 338 F.3d 995, 1001 (9th Cir. 2003); United States v.

Guess, 745 F.2d 1286, 1288 (9th Cir. 1984). Brown does not contest the district

court’s decision to exclude such evidence. Even assuming the district court’s

decision to exclude the evidence of absence of flight was erroneous, any error was

harmless because there was overwhelming evidence of guilt. See United States v.

McInnis, 976 F.2d 1226, 1231 (9th Cir. 1992).

      2.     The sentencing enhancement for vulnerable victims under United

States Sentencing Guidelines § 3A1.1(b) was not clearly erroneous. See United

States v. Scrivener, 189 F.3d 944, 950 (9th Cir. 1999). The court applied the

correct legal standard. Although the court said at the sentencing hearing that the

victims were “potentially vulnerable,” it also relied on the findings from the

presentence report, which concluded the victims were actually vulnerable. The

      1
       We address Brown’s argument regarding the court’s decision to proceed
with 11 jurors after excusing a juror for good cause during deliberations in an
opinion filed concurrently with this memorandum disposition.

                                          2
court also described the enhancement several times without using the term

“potentially.” Furthermore, the Victim Impact Statements and other evidence

show that Brown knew or should have known many of the victims were

vulnerable, because they were elderly, unsophisticated and financially insecure.

See U.S.S.G. § 3A1.1 cmt. n.2; United States v. Caterino, 957 F.2d 681, 683 (9th

Cir. 1992).

      3.      The sentencing enhancement for leadership in “otherwise extensive”

criminal activity under U.S.S.G. § 3B1.1(a) was not clearly erroneous. See United

States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012). The court was not required

to make specific findings of fact to support the imposition of the enhancement. See

id. The evidence showed Brown was the “organizer, leader, manager, or

supervisor of one or more other participants.” U.S.S.G. § 3B1.1(a) cmt. n.2.

Brown assigned tasks to his wife, who was an active and knowing participant in

the criminal activity. Brown also directed multiple employees to process

fraudulent purchases and refunds on the credit cards. See United States v. Rose, 20

F.3d 367, 374 (9th Cir. 1994).

      4.      The court made sufficient findings under Federal Rule of Criminal

Procedure 32 regarding contested facts in the presentence report. The court was

not required to make an express finding as to whether Brown forged credit slips,


                                         3
because that disputed fact did not affect his sentence. See United States v. Petri,

731 F.3d 833, 837-38 (9th Cir. 2013). The court also was not required to expressly

find Brown’s employees were involved in the scheme. The court satisfied Rule 32

by stating that it adopted the government’s position that the enhancement for a

leadership role in otherwise extensive criminal activity applied. See United States

v. Doe, 488 F.3d 1154, 1158-59 (9th Cir. 2007); United States v. Rigby, 896 F.2d

392, 394 (9th Cir. 1990).

      AFFIRMED.




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