                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 29 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50454

              Plaintiff - Appellee,              D.C. No. 2:08-cr-01070-PSG-1

  v.
                                                 MEMORANDUM*
MILTON LEE VANDEVORT, AKA Lee
Vandevort, AKA Leland W. Vandevort,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                        Argued and Submitted May 6, 2013
                              Pasadena, California

Before: PAEZ and IKUTA, Circuit Judges, and SEEBORG, District Judge.**

       Defendant Milton Lee Vandevort appeals his convictions and sentence for

false oath in bankruptcy (18 U.S.C. § 152(2)), fraudulent concealment of assets in

bankruptcy (18 U.S.C. § 152(1)), and unlawful monetary transactions in criminally

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard Seeborg, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
derived property (18 U.S.C. § 1957). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm the convictions and sentence.

1.     The district court did not fail to instruct the jury on an element of the

offense. The jury instructions tracked the text of 18 U.S.C. § 152(1), which we

have held is “quite easily comprehended.” United States v. Weinstein, 834 F.2d

1454, 1461 (9th Cir. 1987). Moreover, “the instructions as a whole” were not

“misleading or inadequate to guide the jury’s deliberation.” United States v. Hofus,

598 F.3d 1171, 1174 (2010). The jury was instructed that it could convict only on

interests that “belonged” to Vandevort and that were “in” his “property.” We

therefore conclude that the district court made no error because it did not misstate

or omit an element of the § 152(1) offense. United States v. Peterson, 538 F.3d

1064, 1070 (9th Cir. 2008). The district court did not abuse its discretion as to the

precise formulation of the instructions. United States v. Peppers, 697 F.3d 1217,

1220 (9th Cir. 2012), cert. denied, 133 S. Ct. 1477 (2013).

2.    The operative statutes, 18 U.S.C. § 152 and 11 U.S.C. § 541, are not

unconstitutionally vague as applied to Vandevort. Here, the case law and

legislative history establish that the term “equitable interests” in 11 U.S.C. § 541 is

not impermissibly vague because (a) Congress intended a very broad definition of

property in the bankruptcy context, see United States v. Whiting Pools, Inc., 462

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U.S. 198, 204-05 (1983); and (b) we have recognized that the “equitable or legal

interests” in the property of the estate defined in 11 U.S.C. § 541 are “created and

defined by state law.” Wilson v. Bill Barry Enterprises, Inc., 822 F.2d 859, 861

(9th Cir. 1987) (citing Butner v. United States, 440 U.S. 48, 55 (1979)). In the

relevant context, “equitable interest” is not beyond the understanding of a person

of ordinary intelligence. See Weinstein, 834 F.2d at 1461.

3.    The district court did not abuse its discretion in excluding a portion of

Vandevort’s statement from his Section 341 hearing testimony. The district court

excluded statements “not offered into evidence by the government and not testified

to by defendant . . . as inadmissible hearsay.” Vandevort’s non-self-inculpatory

statement was inadmissible hearsay not subject to an exception. United States v.

Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (non-self-inculpatory statements are

inadmissible even if they were made contemporaneously with other

self-inculpatory statements), holding modified by United States v. Larson, 495 F.3d

1094 (9th Cir. 2007). The statement did not establish Vandevort’s state of mind

under Federal Rule of Evidence 803(3) because it lacked the indicia of reliability

of a present-sense impression. United States v. Ponticelli, 622 F.2d 985, 991 (9th

Cir. 1980), overruled on other grounds by United States v. De Bright, 730 F.2d

1255, 1259 (9th Cir. 1984) (en banc). Further, “[Federal Rule of Evidence 106]

                                          3
does not compel admission of otherwise inadmissible hearsay evidence.” United

States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996) (internal quotation omitted).

4.    Vandevort appeals the 16-level upward adjustment to his offense level based

on the intended loss of between $1 million and $2.5 million. U.S.S.G.

§2B1.1(b)(1)(I) (2005 version). The district court’s factual findings were not

clearly erroneous, and relying on the debts Vandevort sought to discharge was not

an error of law.

      The only issue is the extent of the loss Vandevort intended to cause his

creditors. Under the Sentencing Guidelines, intended loss is “the pecuniary harm

that was intended to result from the offense; [including] intended pecuniary harm

that would have been impossible or unlikely to occur.” U.S.S.G. §2B1.1,

Application Note 3(A)(ii) (2005). The district court properly applied this definition

of intended loss in determining Vandevort’s advisory sentencing guidelines range.

      Vandevort argues that loss should be limited to the value of his concealed

assets because it was not possible for him to have intended loss beyond that value.

This argument was considered and rejected in United States v. Bussell, 504 F.3d

956, 962 (9th Cir. 2007), where we upheld the district court’s determination that

the intended loss equaled the amount of debt sought to be discharged in the

bankruptcy because that calculation reflected “economic realities.” That same

                                          4
principle applies here. To prevail under the abuse of discretion standard, Vandevort

would have to show that the “economic realities” of this case distinguished it from

those in Bussell. This he cannot do: the evidence in this case shows that his

fraudulent activities go beyond “solely . . . failing to disclose a concealed asset on

the bankruptcy petition.” Id.

      AFFIRMED.




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