                                                                             FILED
                                                                              JAN 04 2013
                              NOT FOR PUBLICATION                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

                       UNITED STATES COURT OF APPEALS

                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 11-50129

           Plaintiff - Appellee,                   D.C. No. 2:08-cr-08-610-TJH-1

 v.
                                                   MEMORANDUM*
STEVAN P. TODOROVIC,

      Defendant - Appellant.


                      Appeal from the United States District Court
                          for the Central District of California
                      Terry J. Hatter, Jr., District Judge, Presiding

                        Argued and Submitted October 10, 2012
                                 Pasadena, California

Before: PREGERSON and W. FLETCHER, Circuit Judges, and BENNETT,

District Judge.**

      Stevan P. Todorovic appeals his conviction by a jury on seven counts of

wire fraud, in violation of 18 U.S.C. §§ 1343 and 2, and three counts of mail fraud,

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
in violation of 18 U.S.C. §§ 1341 and 2. These charges arose from Todorovic’s

operation of two telemarketing businesses, American Bartending Institute (ABI)

and Consumer Response Group (CRG) (also described as “Shopping for Cash”).

These businesses purportedly offered training materials, certification, and jobs or

job placement in bartending or “mystery shopping,” respectively, in the victim’s

locality for a fee charged to customers’ credit cards or bank accounts, when the

consumers called in response to advertisements in local newspapers. The

government alleged that ABI and CRG were fraudulent schemes because the

training materials and certifications were essentially worthless, ABI and CRG did

not provide jobs, the job listings that they provided were drawn from businesses

listed on the internet or in the yellow pages, ABI and CRG had no affiliation or

contact with those businesses, and those businesses were not necessarily seeking

applicants. Todorovic also appeals his sentence of 72 months of imprisonment,

substantially below the bottom of his advisory guidelines sentencing range of 151

to 188 months of imprisonment.

      We have jurisdiction over Todorovic’s challenge to his conviction pursuant

to 28 U.S.C. § 1291. We have carefully considered the district court’s admission

or refusal to admit each category of evidence that Todorovic challenges. Although

we could quibble with some of the district court’s evidentiary rulings, we are


                                          2
satisfied that they did not amount to an abuse of discretion, United States v.

Dorsey, 677 F.3d 944, 951 (9th Cir. 2012) (reviewing evidentiary rulings for abuse

of discretion, where a timely objection was made), or plain error, United States v.

Orm Hieng, 679 F.3d 1131, 1135 (9th Cir. 2012) (reviewing evidentiary rulings for

plain error, where no timely objection was made). We also conclude that, if those

rulings were erroneous, any error was harmless in light of the circumstances of the

case and the overwhelming evidence against Todorovic. United States v. Santini,

656 F.3d 1075, 1077 (9th Cir. 2011) (“Harmless errors do not warrant reversal”

(internal quotation marks and citations omitted)). Certainly, no limitation on,

exclusion of, or admission of any of the evidence in question denied Todorovic a

meaningful opportunity to present his “good faith” defense, United States v. Chi

Mak, 683 F.3d 1126, 1137 (9th Cir. 2012), and such a defense was destined to fail

in the face of overwhelming evidence of Todorovic’s fraud. See id. at 1139.

      Todorovic also challenges his conviction on the basis of several alleged

errors in the jury instructions. Again, we have carefully considered the district

court’s decision to give or not to give each of the instructions that Todorovic

challenges, and its formulation of those instructions, and we find no error. Id. at

1133 (reviewing de novo whether the district court’s jury instructions misstated or

omitted an element of the charged offense and whether they adequately covered the


                                          3
defendant’s theory of the case, and reviewing the district court’s formulation of

jury instructions for abuse of discretion).

      Somewhat more specifically, we conclude that the challenged instructions

that were actually given were legally correct and adequately supported by the

evidence. See id. We have previously upheld a “reckless indifference” instruction

like the one Todorovic challenges. See United States v. Tarallo, 380 F.3d 1174,

1188 (9th Cir. 2004). The challenged “inferences” instruction was a proper

permissive inferences instruction, see United States v. Verduzco, 373 F.3d 1022,

1032 n.5 (9th Cir. 2004), not an improper compulsory inferences instruction, see

United States v. Unruh, 855 F.2d 1363, 1373 (9th Cir. 1987). Also, the evidence

supported the “aiding and abetting” instruction that Todorovic challenges, cf.

United States v. Vela-Robles, 397 F.3d 786, 789 (9th Cir. 2005) (holding that a trial

court is not required to give a defendant’s requested instruction that lacks a factual

foundation), or any error in that instruction was harmless, see Hedgpeth v. Pulido,

555 U.S. 57, 58 (2008) (per curiam) (holding that no “structural error” occurs

where a jury is instructed on alternative theories of guilt, and the defendant alleges

that the jury relied on an invalid theory; rather, review is for “harmless error”).

      Similarly, the district court properly declined Todorovic’s requested “good

faith” defense instruction, because it presented unnecessary factual detail and,


                                              4
instead, gave a proper instruction on the legal principles of the defense for the

jurors to apply to the facts. See United States v. Goland, 959 F.2d 1449, 1453 (9th

Cir. 1992). The district court also properly declined Todorovic’s instruction about

the trial judge signing an order in the FTC proceedings, because it would have

drawn undue attention to a passing matter in a two-week trial. See Lasar v. Ford

Motor Co., 399 F.3d 1101, 1115 n.13 (9th Cir. 2005). Finally, the instructions, as

a whole, provided the jurors with proper guidance. See United States v. Johnson,

680 F.3d 1140, 1147 (9th Cir. 2012) (“The relevant inquiry is whether the jury

instructions as a whole are misleading or inadequate to guide the jury’s

deliberations,” evaluating them “in the context of the entire trial.”) (internal

quotation marks and citations omitted).

      Todorovic also challenges his sentence on various grounds. We have

jurisdiction to review his sentence pursuant to 18 U.S.C. § 3742(a)(2). We review

sentences in two steps: first for procedural error; then, if there is no procedural

error, for substantive unreasonableness. United States v. Collins, 684 F.3d 873,

887 (9th Cir. 2012). There was no error, plain or otherwise, in Todorovic’s

sentence, and the resulting sentence was not substantively unreasonable. United

States v. Rangel, No. 11-50062, 2012 WL 4857207, *3 (9th Cir. Oct. 15, 2012)




                                           5
(“Only a procedurally erroneous or substantively unreasonable sentence should be

set aside.”).

       First, we reject Todorovic’s contention that the district court erred by failing

to require proof by “clear and convincing evidence” for his sentencing

enhancements, not merely proof by a “preponderance” of the evidence, because we

have specifically foreclosed such an argument as to each of the enhancements at

issue here. See United States v. Treadwell, 593 F.3d 990, 1000-01 (9th Cir. 2010)

(holding that an “amount of loss” enhancement does not require higher proof

where it is based on a fraud conviction, and rejecting a higher standard based

solely on the size of the loss enhancement); United States v. Armstead, 552 F.3d

769, 777-78 (9th Cir. 2008) (holding that a “number of victims” enhancement did

not require proof by “clear and convincing evidence” where it was based entirely

on the context of a fraud offense, and that a two-level enhancement, such as the

one that Todorovic received here for “sophisticated means,” is too small to invoke

the higher standard). We find no procedural error in the application of any

enhancement, as each was supported by a preponderance of the evidence.

       Second, the resulting sentence was not substantively unreasonable.

Todorovic has not identified any respect in which, notwithstanding that the district

court correctly considered and applied the guidelines and the § 3553(a) factors, his


                                           6
non-guidelines sentence of 72 months is greater than necessary to accomplish the

goals of sentencing in light of the totality of the circumstances. See Collins, 684

F.3d at 887; United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009). The

district court gave rational and meaningful consideration to the § 3553(a) factors,

particularly the nature and circumstances of the offense and Todorovic’s

involvement in it. See United States v. Rudd, 662 F.3d 1257, 1261 (9th Cir. 2011)

(identifying this as the “touchstone” of reasonableness). Indeed, the trial judge

noted that he did not believe that the advisory guidelines “really encapsulate what

this case is about.”

      Thus, we reject Todorovic’s challenges to both his conviction and his

sentence.

      AFFIRMED.




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