                           NOT FOR PUBLICATION
                                                                           FILED
                                                                            JAN 29 2016
                    UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14–10494

              Appellee,                          D.C. No.
                                                 2:11–cr–00457–JCM–CWH–1
  v.

ERIK HOLMAN,                                     MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                          Submitted November 19, 2015**
                             San Francisco, California

Before: McKEOWN, RAWLINSON, and PARKER,† Circuit Judges.

       Defendant-Appellant Erik Holman appeals from a judgment of conviction for

one count of conspiracy to commit wire fraud and fourteen counts of wire fraud. See

18 U.S.C. §§ 1343, 1349. The prosecution arose from a scheme to embezzle funds


       *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
       The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2); 9th Cir. R. 34-4.
       †
       The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
from American Family Insurance (“AFI”), the employer of his former life partner and

business associate, John Provost.

      On appeal, Holman contends that the trial evidence was insufficient to establish

his guilt on all counts. He also claims that the district court erred in declining to

dismiss the indictment for failure to collect and preserve potentially exculpatory

evidence, in admitting prejudicial, irrelevant testimony at trial, and by imposing a

substantively and procedurally unreasonable sentence. We affirm.

      To establish a violation of due process based upon the Government’s failure to

collect or preserve potentially exculpatory evidence, Holman must show that the

Government acted in bad faith and that he was unable to obtain comparable evidence

by other reasonably available means. Arizona v. Youngblood, 488 U.S. 51, 58 (1988);

United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013). The magistrate judge

to whom the motion was referred found that the Government did not in bad faith fail

to collect and preserve potentially exculpatory emails and documents on Provost’s

work laptop because they had already been destroyed pursuant to AFI’s document

destruction policy before the Government commenced its investigation. Because

Holman did not object to the magistrate’s report and recommendation, he cannot now

challenge the magistrate judge’s factual finding that the Government did not act in bad

faith. Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2011) (“Failure to object to

a magistrate’s factual findings waives the right to challenge those findings.”). In any

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event, the magistrate judge correctly concluded that the Government did not act in bad

faith. See United States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011) (“Bad faith

requires more than mere negligence or recklessness.”).

      Holman’s challenge to his conspiracy conviction also fails. The Government

introduced evidence sufficient for the jury to conclude beyond a reasonable doubt that

Holman knowingly participated in the conspiracy.           Among other things, the

Government proved that Holman participated in the scheme to defraud by setting up

a sham private investigative firm, Holman Information Services (“HIS”), to which

Provost issued checks from AFI for services HIS never provided, and that Provost and

Holman made personal use of the funds.

      The evidence was also sufficient to support Holman’s wire fraud convictions.

To sustain a conviction for wire fraud, the Government had to prove (i) a scheme to

defraud, (ii) use of the wires in furtherance of the scheme, and (iii) a specific intent

to deceive or defraud. United States v. Shipsey, 363 F.3d 962, 971 (9th Cir. 2004).

The Government introduced evidence sufficient to prove that Holman established a

sham business that was used by Provost to facilitate a scheme to defraud AFI through

the use of the wires, pursuant to which a series of deposits charged in the substantive

wire fraud counts were deposited into an account which Holman used for personal

purposes.

                                           3
      Holman additionally contends that the district court improperly allowed

testimony that he showed a lack of compassion and concern while in the hospital after

Provost attempted suicide. While we have significant doubts as to the relevance of

this testimony, we do not believe that the district court abused its discretion in

admitting the evidence as some proof of the closeness of Holman and Provost’s

relationship. Even assuming the testimony should not have been admitted, any error

was harmless in light of the substantial evidence of Holman’s guilt. See United States

v. Merino-Balderrama, 146 F.3 758, 761 (9th Cir. 1998).

      Finally, the district court did not commit procedural or substantive error in

sentencing Holman to thirty-seven months incarceration followed by three years of

supervised release, a sentence at the bottom of the Sentencing Guidelines range.

Holman’s arguments for a sentence of three years of supervised release essentially

consisted of rearguing his defenses at trial. Our review of the record indicates that the

district court properly calculated Holman’s Guidelines range and did not impose a

substantively unreasonable sentence. Moreover, the district court adequately indicated

that it had considered the 18 U.S.C. § 3553(a) factors and the statements and materials

submitted by counsel and satisfactorily explained the sentence it imposed.

      AFFIRMED.




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