                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               FEB 19 2015

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

UNITED STATES OF AMERICA,                        No. 13-50465

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00918-BEN-2

  v.
                                                 MEMORANDUM*
DOUGLAS McCLAIN, JR.,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                     Argued and Submitted December 9, 2014
                              Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges, and BELL, District Judge.**

       Douglas McClain appeals his conviction and sentence following a jury trial for

conspiracy, mail fraud, wire fraud, securities fraud, and money laundering in violation

of 18 U.S.C. §§ 2, 371, 1341, 1343, 1957, and 15 U.S.C. § 78j(b), 78ff. Appellant


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert Holmes Bell, District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
contends that the district court erred in (1) denying his motion to sever his trial from

that of co-defendant Jeffrey Spanier; (2) declining to give his proposed jury

instruction; and (3) calculating sentencing enhancements based on financial loss under

the Sentencing Guidelines. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm Appellant’s convictions and sentence.1

      First, we reject Appellant’s contention that the district court abused its

discretion in denying a trial severance. See United States v. Adler, 879 F.2d 491, 497

(9th Cir. 1988). Appellant has failed to show “clear, manifest, or undue prejudice

resulting from joinder.” Adler, 879 F.2d at 497; United States v. Tootick, 952 F.2d

1078, 1082 (9th Cir. 1991).

      Appellant and Spanier’s defenses were not mutually exclusive, and thus did not

prejudice Appellant. See Tootick, 952 F.2d at 1078. The jury’s acceptance of Spanier’s

defense that he was unaware of Argyll’s intention to sell its borrowers’ collateral

stocks did not preclude acquittal of Appellant on his defense that the sale of stock was

legal under the loan agreement. See United States v. Mayfield, 189 F.3d 895, 899-901

(9th Cir. 1999). Moreover, any attempt by Spanier to exculpate himself by inculpating

Appellant did not create antagonism sufficient to require severance without a showing



      1
          As the facts and procedural history are familiar to the parties, we do not
recite them here except as necessary to aid in understanding this disposition.
                                           2
of prejudice. See, e.g.,United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir.

1996); Tootick, 952 F.2d at 1081; Adler, 879 F.2d at 497.

      Furthermore, any prejudice Appellant suffered was cured by limiting

instructions, which “often will suffice to cure any risk of prejudice.” Zafiro, 506 U.S.

at 539. The district court gave all relevant jury instructions established by Zafiro, thus

eliminating any risk of prejudice due to conflicting defenses. See Zafiro, 506 U.S. at

541; United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987).

      Second, the district court correctly declined to provide Appellant’s proposed

jury instruction because it was an incorrect statement of law in the context of this case.

United States v. Hanousek, 176 F.3d 1116, 1122 (9th Cir. 1999); United States v.

McGeshick, 41 F.3d 419, 421 (9th Cir. 1994). The holding of Rubin v. United States,

449 U.S. 424 (1981), does not support Appellant’s broad contention that a pledge of

stock as collateral entitles the secured party to sell the stock. See Marine Bank v.

Weaver, 455 U.S. 551, 554 n.2 (1982); In re Am. Cont’l Corp./Lincoln Sav. & Loan

Sec. Litig. 49 F.3d 541, 543 (9th Cir. 1995).

      Moreover, Appellant was not prejudiced by the district court’s refusal to

provide the requested instruction. The district court did provide Appellant’s theory of

the defense instruction, and Appellant presented his theory to the jury in his closing

argument. See United States v. Bello-Bahena, 411 F.3d 1083, 1091 (9th Cir. 2005)


                                            3
(establishing a defendant’s entitlement to an instruction on his theory of defense);

United States v. Thomas, 612 F.3d 1107, 1120 (9th Cir. 2010) (finding instructions,

in their entirety, adequately covered the defense’s theory). Appellant did not move to

re-open his closing argument after the district court declined to provide his requested

instruction, nor did he move for a mistrial.

      Last, the district court did not err at sentencing when it applied a preponderance

of the evidence standard to calculate financial losses as a result of the conspiracy.

Because the sentencing enhancements for financial loss were based upon the extent

of the conspiracy, the heightened “clear and convincing evidence” standard of proof

was not required. United States v. Treadwell, 593 F.3d 990, 1001 (9th Cir. 2010)

(citing United States v. Armstead, 552 F.3d 769, 777 (9th Cir. 2008).

      As to the loss calculations, the district court “need only make a reasonable

estimate of the loss.” Application Note 3(C) to U.S.S.G. § 2B1.1. The loss

calculations were based on actual sale price of shares, reduced by amounts paid to the

borrowers as loans. See Application Note 3(B) to U.S.S.G. § 2B1.1. Appellant

provides no legal authority for his contention that the loss methodology adopted by

the district court was erroneous.

      For the foregoing reasons, the judgment of conviction and sentence are

AFFIRMED.


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