                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 18 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30103

                Plaintiff-Appellee,             D.C. No.
                                                3:13-cr-00103-SLG-1
 v.

MICHAEL D. BRANDNER,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Alaska
                   Sharon L. Gleason, District Judge, Presiding

                    Argued and Submitted November 14, 2017
                              Pasadena, California

Before: KOZINSKI, HAWKINS, and PARKER,** Circuit Judges.

      The District Court correctly denied Brandner’s motion to suppress the

testimony of witness Joseph Saranello. The record established that Saranello was

not an attorney, that it would not have been reasonable for Brandner to believe that

Saranello was an attorney, and, consequently, that no attorney-client relationship


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Barrington D. Parker, United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
existed. The District Court also correctly concluded that, even if the attorney-

client privilege applied, the privilege was overcome by the crime-fraud exception

because there was “reasonable cause to believe that the attorney’s services were

utilized in furtherance of the ongoing unlawful scheme.” In re Grand Jury

Proceedings, 87 F.3d 377, 381 (9th Cir. 1996) (citation and quotation marks

omitted).

      We see no merit in Brandner’s argument that the District Court should have

dismissed the indictment because Saranello purportedly perjured himself at the

suppression hearing. The District Court correctly concluded that Saranello’s

testimony was not actually false and that the government did not knowingly

present false testimony.

      Further, we see no merit in Brandner’s contention that the District Court

erred in computing the applicable sentencing guidelines or imposed a substantively

unreasonable sentence. The District Court correctly concluded that Brandner did

not intend to return the funds he took to Central America and that he had moved

them out of the United States in an attempt to conceal them from his wife and the

Alaska court in which his divorce proceeding was pending. The District Court’s

ensuing guidelines calculations were correct.

      Nor was Brandner’s sentence substantively unreasonable. The District

Court properly considered the 18 U.S.C. § 3553(a) factors. Although the District


                                          2
Court calculated his guidelines range to be 87 to 108 months, the District Court

sentenced Brandner to 48 months of imprisonment, a substantial downward

variance.

      We have considered Brandner’s other arguments pertaining to, inter alia,

jury instructions and the denial of a lengthy continuance of the second trial due to

his first trial counsel’s unavailability and find them either not preserved or

meritless.

      AFFIRMED.




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