                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 11 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50447

              Plaintiff - Appellee,              D.C. No. 8:10-cr-00127-DOC-1

 v.
                                                 MEMORANDUM*
EDUARDO RUIZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                            Submitted August 4, 2015**
                               Pasadena, California

Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Eduardo Ruiz appeals his convictions for mail fraud and conspiracy to

commit mail fraud, as well as his resulting 108-month sentence. We have

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

      1.     The district court did not err in denying Ruiz’s motion to dismiss for

violation of the Speedy Trial Act. At the very least, the period of November 8,

2011, to March 13, 2012, was properly excluded under 18 U.S.C. § 3161(h)(7),

and the overlapping period of March 6, 2012, to March 26, 2012, was properly

excluded under 18 U.S.C. § 3161(h)(1)(H). As to the first time period, the “ends

of justice” continuance granted by the district court was “specifically limited in

time” and “justified on the record with reference to the facts as of the time the

delay [was] ordered.” United States v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th

Cir. 2000) (internal quotation marks and alterations omitted). Further, a district

court granting an “end of justice” continuance need not contemporaneously set

down the factual predicate for that determination; simultaneous findings are

unnecessary “so long as the trial court later shows that the delay was motivated by

proper considerations.” United States v. Bryant, 726 F.2d 510, 511 (9th Cir. 1984)

(per curiam). We also note that the record is clear that Ruiz was the “moving

force” behind the grant of the continuance. See United States v. Gallardo, 773

F.2d 1496, 1506 (9th Cir. 1985).


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      As to the second time period, even were the March 6, 2012, discovery

motion Ruiz filed to be considered a pro forma discovery motion involving no live

dispute, the district court was allowed to exclude 30 days from March 6—the date

of the last filing of supporting papers—and trial commenced less than 30 days later

on March 27, 2012. United States v. Medina, 524 F.3d 974, 979 (9th Cir. 2008)

(citing United States v. Sutter, 340 F.3d 1022, 1029–32 (9th Cir. 2003)).

Excluding these two time periods, as well as the other unchallenged continuances,

no more than 70 unexcluded days passed between Ruiz’s first appearance and the

commencement of trial. Therefore, no Speedy Trial Act violation occurred. See

18 U.S.C. § 3161(c)(1).

      2.     The district court did not abuse its discretion in finding that the

government presented sufficient evidence to satisfy its prima facie burden that the

emails were what the government claims they were: emails to and from Gilma Ruiz

and/or Ruiz. See United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000).

Mildred Morales’s testimony, Agent Dokter’s testimony, Yahoo custodian of

record Douglas Nolan’s testimony, and Gilma Ruiz’s notebook collectively

provided a sufficient basis for the district court’s rulings that the emails had been

properly authenticated.




                                           3
      3.       The district court neither abused its discretion in admitting the emails

as coconspirator statements nor committed clear error in finding the underlying

factual requirements were met. See United States v. Moran, 493 F.3d 1002, 1010

(9th Cir. 2007) (per curiam). Agent Dokter’s testimony and Morales’s testimony

provided sufficient grounds for the district court to find (1) “a conspiracy existed at

the time the statement[s] w[ere] made”; (2) Ruiz “had knowledge of, and

participated in, the conspiracy”; and (3) “the statement[s] w[ere] made in

furtherance of the conspiracy.” United States v. Bowman, 215 F.3d 951, 960–61

(9th Cir. 2000) (citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)). To

the extent the district court may have abused its discretion in admitting one email

chain from May 2007—after the latest definitive date Morales testified Ruiz

worked at Premier One Realty, April 2007—any such error was harmless because

the email chain contained information similar to the multiple other, properly

admitted emails. Cf. United States v. Macias, 789 F.3d 1011, 1022 (9th Cir. 2015)

(“Where there has been a nonconstitutional error, we must reverse unless there is a

fair assurance of harmlessness, or, stated otherwise, unless it is more probable than

not that the error did not materially affect the verdict.” (internal quotation marks

omitted) (quoting United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997)

(en banc))).


                                            4
      4.     The district court did not commit procedural error in sentencing Ruiz

to 108 months’ imprisonment. First, the district court did not clearly err in finding

that the organizer/leader enhancement under § 3B1.1(a) of the Sentencing

Guidelines applied to Ruiz. See United States v. Yi, 704 F.3d 800, 805, 807 (9th

Cir. 2013). There was sufficient evidence that Ruiz organized Premier One Realty

to generate fraudulent loan packages and that he trained at least five employees of

Premier One Realty in this illegal venture. See id. at 807. Second, Ruiz has not

met his burden of establishing that the district court relied on a clearly erroneous

fact in sentencing him to 108 months’ imprisonment. See United States v.

Christensen, 732 F.3d 1094, 1103 (9th Cir. 2013). Although the district court may

have inartfully described Gilma Ruiz as “minimally involved” in the underlying

fraudulent scheme, the record establishes that the overall tenor of the sentencing

hearing was that Ruiz was relatively more culpable and exercised more control

over the enterprise than Gilma Ruiz did, a finding that is not clearly erroneous. As

such, we are not “left with the definite and firm conviction that a mistake has been

committed.” Id. (internal quotation marks and citation omitted).

      AFFIRMED.




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