                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 24 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10137

             Plaintiff - Appellee,               D.C. No. 2:07-CR-00135-KJD-
                                                 LRL-1
  v.

STEPHEN LEE SELDON, M.D.,                        MEMORANDUM *

             Defendant - Appellant,




UNITED STATES OF AMERICA,                        No. 09-10150

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00135-KJD-
                                                 LRL-2
  v.

DEBORAH MARTINEZ SELDON,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                        Argued and Submitted June 15, 2010

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                              San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and GONZALEZ, Chief
District Judge.**

      Stephen Lee Seldon and Deborah Martinez Seldon appeal their jury

convictions and sentences for mail fraud under 18 U.S.C. § 1341, aiding and

abetting under 18 U.S.C. § 2, and misbranding a drug while held for sale under 21

U.S.C. §§ 331(k) and 333(a)(2). We affirm.

      The warrant authorizing the search of defendants’ anti-aging clinic did not

violate the Fourth Amendment. The warrant specified that any search of seizable

materials intermingled with non-seizable materials would be carried out by trained

computer personnel and outlined detailed procedures “to avoid turning a limited

search for particular information into a general search of office file systems and

computer databases.” United States v. Comprehensive Drug Testing, Inc., 579

F.3d 989, 998 (9th Cir. 2009) (en banc). The warrant and its supporting materials

were not invalid under our decision in United States v. Tamura, 694 F.2d 591 (9th

Cir. 1982). Indeed, the warrant appears to have been specifically drafted to comply

with Tamura’s requirements.




       **
             The Honorable Irma E. Gonzalez, Chief United States District Judge
for the Southern District of California, sitting by designation.

                                         -2-
      To the extent appellants challenge the search as going beyond the scope of

the warrant, the district court did not plainly err in holding otherwise. See United

States v. Olano, 507 U.S. 725, 731-32 (1993). Moreover, only evidence within the

scope of the warrant was used at appellants’ trial. Where, as here, a warrant is

valid on its face, the Fourth Amendment does not require that lawfully seized

evidence be suppressed even where “the police unlawfully seize[] . . . items

unconnected to the prosecution.” Waller v. Georgia, 467 U.S. 39, 43 n.3 (1984);

see also Tamura, 694 F.2d at 597.

      We review the district court’s admission of evidence relating to the so-called

Florida Incident for plain error, United States v. Khan, 993 F.2d 1368, 1377 (9th

Cir. 1993),1 and find none. The Florida Incident was certainly relevant: it provided

context for the government’s investigation of Livdahl and, later, appellants, see

United States v. Daly, 974 F.2d 1215, 1217 (9th Cir. 1992) (“A jury is entitled to

know the circumstances and background of a criminal charge.”), as well as critical

background for testimony regarding appellants’ “concealment . . . and related

conduct [that we]re admissible as evidence of consciousness of guilt, and thus of



      1
        Appellants did not object to this evidence until day five of trial, and even
then only objected on relevance grounds. Appellants never mentioned Rule 403 or
the danger of unfair prejudice, confusion, or misleading the jury. See United States
v. Tarazon, 989 F.2d 1045, 1053 (9th Cir. 1993).

                                         -3-
guilt itself.” Marcoux v. United States, 405 F.2d 719, 721 (9th Cir. 1968)

(quotation marks omitted); see also United States v. Jaramillo-Suarez, 950 F.2d

1378, 1384-85 (9th Cir. 1991). Moreover, the danger of unfair prejudice from

testimony about the Florida Incident was minimized because the jury was

repeatedly told that TRItox was not the substance involved. Finally, even if the

district court erred in admitting evidence of the Florida Incident, it did not plainly

err in doing so given the overwhelming evidence of guilt at appellants’ trial. See

United States v. Pino-Noriega, 189 F.3d 1089, 1097 (9th Cir. 1999).

      The district court refused to allow Stephen Seldon to testify that certain

checks (1) made out to cash, (2) signed by Deborah Seldon, and (3) with blank

“memo” lines, were used to purchase Botox unless he could first testify that he had

personal knowledge of how each individual check was used. This did not violate

appellants’ Sixth Amendment rights, as the district court was simply applying the

personal knowledge requirement of Federal Rule of Evidence 602. See United

States v. Perkins, 937 F.2d 1397, 1401 (9th Cir. 1991) (“[I]n the exercise of th[e

fundamental right to present a defense], the accused . . . must comply with

established rules of procedure and evidence designed to assure both fairness and

reliability in the ascertainment of guilt and innocence.” (quotation marks omitted)).




                                          -4-
      There was sufficient evidence to convict appellants of misbranding a drug

while held for sale under 21 U.S.C. § 331(k). “The vendor’s intent is the key

element” of the definition of “drug” under § 331(k), and “[t]his intent may be

derived or inferred from labeling, promotional material, advertising, or any other

relevant source.” United States v. Storage Spaces Designated Nos. “8” & “49”,

777 F.2d 1363, 1366 (9th Cir. 1985). Here, there was testimonial and documentary

evidence that appellants represented that they were injecting genuine Botox into

patients after October 13, 2003, and that appellants intended to use this substance

for the therapeutic treatment of frown lines. A rational trier of fact could have

concluded that this evidence established beyond a reasonable doubt that TRItox

was a “drug” within the meaning of § 331(k).

      Finally, the district court did not err in calculating appellants’ range under

the Sentencing Guidelines. The record of the sentencing hearing establishes that

the district court did not rely on the jury with respect to amount of loss and number

of victims, but in fact made its own findings with respect to these sentencing

enhancements.

      AFFIRMED.




                                          -5-
