                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 03 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10093

              Plaintiff - Appellee,              D.C. No. 3:14-cr-00102-CRB-1

 v.
                                                 MEMORANDUM*
IAN FURMINGER,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 15-10157

              Plaintiff - Appellee,              D.C. No. 3:14-cr-00102-CRB-2

 v.

EDMOND ROBLES,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Northern District of California
                Charles R. Breyer, Senior District Judge, Presiding

                        Argued and Submitted May 9, 2016
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.

       Ian Furminger, having been convicted of two counts of wire fraud (18

U.S.C. § 1343), one count of conspiracy against civil rights (18 U.S.C. § 241), and

one count of conspiracy to commit theft concerning a federally funded program

(18 U.S.C. § 371), and Edmond Robles, convicted of the same offenses, as well as

theft concerning a federally funded program (18 U.S.C. § 666(a)(1)(A)), appeal

their convictions. Furminger additionally challenges his sentence. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                            I

       The district court did not abuse its discretion in denying Furminger’s motion

to sever his trial from codefendant Robles. “There is a preference in the federal

system for joint trials of defendants who are indicted together,” Zafiro v. United

States, 506 U.S. 534, 537 (1993), so long as there is no “serious risk that a joint

trial would compromise a specific trial right of one of the defendants, or prevent

the jury from making a reliable judgment about guilt or innocence,” id. at 539.

Such a determination is left “to the sound discretion of the district courts.” Id. at

541.




                                            2
      Here, there was no “serious risk” that a joint trial prevented the jury from

making a reliable judgment. See id. at 539. As the district court noted, because

Furminger and Robles were being charged with a conspiracy, it was appropriate to

try them together. Any risk that remained was minimized by the district court’s

limiting instructions. See United States v. Patterson, 819 F.2d 1495, 1502–03 (9th

Cir. 1987).

                                           II

      The district court did not abuse its discretion in allowing the government to

introduce various text messages concerning Furminger’s financial state. Because

nothing in Furminger’s text messages appears to have been particularly prejudicial,

it is unlikely that the probative value of such evidence was “substantially

outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. Given the

strength of the government’s case against Furminger, even if the district court erred

in admitting such evidence, it was more probable than not that the admission of the

text messages did not materially affect the verdict. See United States v. Seschillie,

310 F.3d 1208, 1214 (9th Cir. 2002). Any error was thus harmless.

                                          III

      Furminger and Robles’s stipulation that the San Francisco Police

Department received more than $10,000 in federal funds in both 2009 and 2010,


                                           3
provided enough evidence for a rational juror to find, beyond a reasonable doubt,

that the San Francisco Police Department received federal funds within the

requisite one-year period required by 18 U.S.C. § 666. See Jackson v. Virginia, 443

U.S. 307, 319 (1979). The imprecise phrasing of the jury instruction did not

undermine the jury’s verdict because the sufficiency of the evidence in this case is

properly assessed against the charged crime, not the jury instructions. See

Musacchio v. United States, 136 S. Ct. 709, 713 (2016).

                                          IV

      The district court did not err in finding that Furminger was not a “minor

participant” in the crimes for which he was convicted under section 3B1.2(b) of the

United States Sentencing Guidelines. Although, as the district court noted,

Furminger had less direct involvement in some of the individual acts of

wrongdoing and at times did not receive the proceeds of Robles’s and Vargas’s

thefts, Furminger nevertheless “fulfilled a critical role in the criminal venture”

because his position of enhanced responsibility helped facilitate his subordinates’

crimes. See United States v. Klimavicius-Viloria, 144 F.3d 1249, 1267 (9th Cir.

1998). As the district court explained, Furminger betrayed the “faith that the

department had in him” and failed in his responsibility to stop his subordinates’




                                           4
wrongdoing. The district court therefore did not err in finding that Furminger was

not a “minor participant.”1

                                          V

      The jury had sufficient evidence to convict Robles and Furminger of wire

fraud. The government’s evidence demonstrated that the officers’ misuse of police

authority to steal money and other property constituted “false or fraudulent

pretenses, representations, or promises,” 18 U.S.C. § 1343, because the officers

represented to their victims that they were conducting lawful searches and arrests

when their true aim was to commit theft. Such deception was directed at the

victims of the scheme—the individuals whose rooms were searched. See United

States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989) (“[T]he intent of the scheme . . .

must be to obtain money or property from the one who is deceived . . . .”). Because

the wire transmissions themselves need not be false or deceptive so long as they

are used to further the scheme, see United States v. Jinian, 725 F.3d 954, 965 (9th

Cir. 2013), a rational juror could have convicted Robles and Furminger of wire



      1
        Approximately eight months after Furminger was sentenced, the United
States Sentencing Commission amended the commentary to section 3B1.2(b). See
United States v. Quintero-Leyva, No. 14-50509, 2016 WL 2865713, at *1 (9th Cir.
May 17, 2016). We are satisfied that the district court’s stated rationale for
rejecting Furminger’s request for a reduction remains adequate under the revised
commentary, which applies retroactively. See id.
                                          5
fraud based on the evidence presented at trial, see Jackson, 443 U.S. at 319, which

included Vargas’s text message and the faxed police report.

                                              VI

       The district court did not abuse its discretion when it refused to hear

Robles’s ineffective assistance of counsel claim under Strickland v. Washington,

466 U.S. 668 (1984). Such a claim is “more appropriately reserved for habeas

corpus proceedings, where facts outside the record, but necessary to the disposition

of the claim, may be fully developed.” United States v. Laughlin, 933 F.2d 786,

788 (9th Cir. 1991). Because Robles’s ineffective assistance of counsel claim was

“broad-based and the evidentiary record to consider it was sorely lacking,” United

States v. Steele, 733 F.3d 894, 898 (9th Cir. 2013), the district court did not abuse

its discretion in declining to consider it.

       AFFIRMED.




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