                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 20 2012

                                                                        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. 11-50447

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01055-PA-1

  v.
                                                 MEMORANDUM *
EZRI NAMVAR, AKA Ezri Namvar
Moghadam,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-50448

              Plaintiff - Appellee,              D.C. No. 2:10-cr-01055-PA-2

  v.

HAMID TABATABAI, AKA Hamid
Taba,

              Defendant - Appellant.



                   Appeals from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted November 8, 2012
                              Pasadena, California

Before: BRIGHT,** GRABER, and IKUTA, Circuit Judges.

      Defendants Ezri Namvar and Hamid Tabatabai appeal their convictions for

four counts of wire fraud under 18 U.S.C. § 1343. We affirm Namvar’s

convictions. We reverse Tabatabai’s convictions and remand for a new trial.

                                           I

      Viewing the evidence in the light most favorable to the government, a

reasonable juror could conclude that Namvar was engaged in a material scheme to

defraud certain clients who used Namco Financial Exchange (NFE) as a qualified

intermediary, by transferring their funds out of NFE accounts for investment or

other uses without the clients’ authorization. See, e.g., United States v. Jones, 472

F.3d 1136, 1139-40 (9th Cir. 2007). The government did not need to prove that

Namvar personally made fraudulent omissions or misrepresentations. United

States v. Farris, 614 F.2d 634, 638-39 (9th Cir. 1979). It adduced ample evidence

of Namvar’s knowledge of and participation in the fraudulent scheme, including

Namvar’s authorization of wire transfers removing funds from the NFE accounts.

A reasonable juror could have concluded that Namvar had the requisite intent from


       **
            The Honorable Myron H. Bright, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.

                                          2
evidence that Namvar apologized for his actions and admitted wrongdoing to

certain clients. See United States v. Rogers, 321 F.3d 1226, 1230 (9th Cir. 2003).

Because a reasonable juror could find the elements of wire fraud beyond a

reasonable doubt, Namvar’s conviction is supported by sufficient evidence. See 18

U.S.C. § 1343; see also United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.

2010) (en banc).

      The district court properly excluded evidence of Namvar’s intent to repay

the victims and good faith effort to fund the exchanges because such an intent is

not a defense to fraud. United States v. Benny, 786 F.2d 1410, 1417 (9th Cir.

1986). In light of the substantial evidence supporting Namvar’s guilt, any error

with respect to the district court’s other evidentiary rulings, or with respect to its

inadvertent exclusion of defense exhibits, was harmless beyond a reasonable doubt.

      We also reject the argument that the district court erred in its instructions on

the elements of wire fraud, because so long as “‘a scheme is devised with the intent

to defraud,’” it is immaterial that “there is no misrepresentation of a single existing

fact.” United States v. Woods, 335 F.3d 993, 998 (9th Cir. 2003) (emphasis

omitted) (quoting Lustiger v. United States, 386 F.2d 132, 138 (9th Cir. 1967)).

The scheme theory was charged in the indictment and the instruction therefore did

not constitute a material variance. Nor did the district court err in declining to give


                                            3
a jury instruction based on United States v. Dowling, 739 F.2d 1445, 1449 (9th Cir.

1984), rev’d on other grounds, 473 U.S. 207 (1985), or United States v. Laurienti,

611 F.3d 530, 539 (9th Cir. 2010), cert. denied, 131 S. Ct. 969 (2011), both of

which addressed a theory of wire fraud based on material omissions, which is not

applicable here.

      The government’s references during closing and rebuttal arguments to

“ripping off” or “stealing” from the victims, while an unflattering description of

Namvar’s conduct, rested on reasonable inferences drawn from the evidence,

United States v. Wright, 625 F.3d 583, 613 (9th Cir. 2010), and thus did not

amount to prosecutorial misconduct. We also reject the claim that the government

vouched for certain witnesses. The government made no personal assurances

regarding the credibility of its witnesses, but merely asked the jury to draw an

inference from the evidence. Cf. United States v. Weatherspoon, 410 F.3d 1142,

1146 (9th Cir. 2005). Finally, because any “inconsistencies [in testimony] were

fully explored and argued to the jury,” United States v. Houston, 648 F.3d 806, 814

(9th Cir. 2011), cert. denied, 132 S. Ct. 1727 (2012), we reject Namvar’s argument

that the government willfully suborned false testimony from any witness.

                                          II




                                          4
      With respect to Tabatabai’s convictions, viewing the evidence in the light

most favorable to the government, a reasonable juror could find the elements of

wire fraud beyond a reasonable doubt. Nevils, 598 F.3d at 1164.

      Although the exclusion of all of Tabatabai’s defense exhibits did not

constitute a structural error, it was not harmless beyond a reasonable doubt. The

government’s evidence that Tabatabai had the requisite mens rea was thin, and at

least one of the defense exhibits bolstered his theory that he had acted in good

faith. The jury’s request for the defense exhibits suggests that the evidence was

material to its decision-making process. We therefore reverse and remand for a

new trial for Tabatabai. Because we decide on this ground, Tabatabai’s severance

claim is moot, and we need not reach Tabatabai’s objections to evidentiary rulings

and jury instructions which may not arise on a retrial.

      AFFIRMED AS TO NAMVAR.

      REVERSED AND REMANDED AS TO TABATABAI.




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