                           NOT FOR PUBLICATION
                                                                          FILED
                    UNITED STATES COURT OF APPEALS
                                                                           JAN 09 2015
                            FOR THE NINTH CIRCUIT
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS



UNITED STATES OF AMERICA,                        No. 13-10337

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01047-ROS-2

  v.
                                                 MEMORANDUM*
RANDOLPH BENJAMIN RODMAN,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                 Roslyn O. Silver, Senior District Judge, Presiding

                      Argued and Submitted October 9, 2014
                               Phoenix, Arizona

Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.

       Randolph Rodman challenges his conviction for conspiracy to defraud the

government under 18 U.S.C. § 371 based on the alleged prejudicial testimony of a

co-conspirator and outrageous government conduct. He also challenges the

sufficiency of evidence for the charges of aiding and abetting the illegal possession


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and transfer of a machine gun, and use of the mail and wires in furtherance of a

scheme or artifice. Finally, Rodman argues that the district court erred in

enhancing his sentencing level for trafficking in firearms. All other claims raised

by Rodman are addressed in an opinion filed concurrently. Because the parties are

familiar with the facts and procedural history of this case, we repeat only those

facts necessary to resolve the issues raised on appeal. We affirm in part, vacate in

part, and remand for resentencing.

I. Testimony of Co-Conspirator

      The district court did not abuse its discretion in allowing the testimony of

Lorren Mark Kalish. See United States v. Dorsey, 677 F.3d 944, 951 (9th Cir.

2012). Both co-defendants in the trial were charged with the same, single

conspiracy to defraud the government, and Kalish testified about the nature of that

conspiracy and the overt acts taken to further that conspiracy. Thus, Kalish’s

testimony about the conspiracy is relevant to Rodman, and Rodman was not

prejudiced by this testimony. See United States v. Smith, 609 F.2d 1294, 1297-99

(9th Cir. 1979).

II. Outrageous Government Conduct

      In order to dismiss on the basis of outrageous government conduct, the court

must find the government’s conduct “so grossly shocking and so outrageous as to

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violate the universal sense of justice.” United States v. Smith, 924 F.2d 889, 897

(9th Cir. 1991). Rodman argues that there was outrageous government conduct

because the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)

continued to approve the registration and transfer forms submitted by Clark even

after they had begun an investigation into Clark’s operations. However, approving

submitted registration and transfer forms does not satisfy the high standard of

“grossly shocking” and violating “the universal sense of justice” necessary to find

outrageous government conduct. We also note that the government conduct at

issue did not encourage Rodman to commit the charged offenses as he purchased

and sold the offending machine guns and submitted false forms to the ATF prior to

the ATF's approval of the forms in 2008. See United States v. Black, 733 F.3d 294,

303-06 (9th Cir. 2013). Accordingly, we reject this claim.

III. Mail/Wire Fraud

      Rodman was convicted of mail and wire fraud in connection with submitting

registration and transfer forms to the ATF and shipping illegal machine guns.

However, mail and wire fraud is “limited in scope to the protection of property

rights.” McNally v. United States, 483 U.S. 350, 360 (1987). The government

conceded in supplemental briefing and at oral argument that it had failed to allege a

conspiracy wherein Rodman deprived the government of property. Thus, we

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reverse Rodman’s conviction for mail and wire fraud, and we remand for

resentencing.

IV. Aiding and Abetting Counts

      Rodman was also convicted of aiding and abetting the possession and

transfer of machine guns in violation of law. Because Rodman failed to move for

acquittal based on the non-conspiracy aiding and abetting counts, we review for

plain error. United States v. Cruz, 554 F.3d 840, 844 (9th Cir. 2009). Aiding and

abetting requires that the defendant “specifically intended to facilitate the

commission of [the principal’s] crimes.” United States v. Bancalari, 110 F.3d

1425, 1430 (9th Cir. 1997) (alteration in original) (internal quotation marks

omitted). There was sufficient evidence proving that Rodman specifically intended

to facilitate Clark’s illegal possession and transfer of machine guns, and thus there

was no plain error.

V. Sentencing Guideline Enhancement

      The government concedes that Rodman’s sentencing range was increased by

four levels for trafficking in firearms under U.S.S.G. § 2K2.1(b)(5) without the

proper supporting facts required for such an enhancement. Therefore, we vacate

his sentence and remand to the district court for resentencing.

AFFIRMED in part, VACATED in part, and REMANDED for resentencing.

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