                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 10 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50476

              Plaintiff - Appellee,              D.C. No. 2:04-cr-01416-RGK-2

  v.
                                                 MEMORANDUM*
PAULA CAMEO HARRIS,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-50477

              Plaintiff - Appellee,              D.C. No. 2:04-cr-01416-RGK-1

  v.

PAUL H. RICHARDS, II,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 10-50493

              Plaintiff - Appellee,              D.C. No. 2:04-cr-01416-RGK-3

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
BEVAN ALTEE THOMAS, AKA Seal C,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                         Argued and Submitted June 4, 2012
                               Pasadena, California

Before: B. FLETCHER, WARDLAW, and BYBEE, Circuit Judges.

      Paul Richards, Paula Harris, and Bevan Thomas appeal from the district

court’s partial denial of their motion to vacate the guilty verdicts returned on thirty-

nine counts, including honest services fraud, money-and-property fraud, money

laundering, bribery, extortion, false statement, and perjury in violation of 18

U.S.C. §§ 1346, 1341, 1956(a)(1), 666(a)(2), 1951, 1001, and 1623. We affirm in

part, reverse in part, and remand for resentencing.

      1.     We affirm the district court’s order vacating the guilty verdicts on

counts 10, 11, 35, 36, 37, 38, and 39, because those counts do not allege a bribery

or kickback scheme and are thus based on an invalid theory of honest services

fraud under Skilling v. United States, 130 S. Ct. 2896 (2010). We further vacate

the guilty verdicts on counts 2, 14, and 15, which the government concedes are not

related to a bribery or kickback scheme and thus are also invalid under Skilling.

                                           2
      2.     The verdicts on the remaining honest services fraud counts remain

valid as to Richards and Thomas, because it is “not open to reasonable doubt that a

reasonable jury would have convicted [the defendants]” on a valid theory. United

States v. Pelisamen, 641 F.3d 399, 406 (9th Cir. 2011) (alteration in original)

(citation omitted). The indictment and evidence presented at trial sufficiently

charged alternate bribery and kickback theories for the nuisance abatement and

CBL transportation contracts, respectively. Indeed, both schemes were separately

charged as substantive bribery and kickback offenses, and the jury returned a guilty

verdict as to both. See United States v. Wilkes, 662 F.3d 524, 544 (9th Cir. 2011)

(holding that a guilty verdict on a separate substantive count of bribery or

kickbacks “confirms beyond any reasonable doubt that the jury would have

convicted [defendant] of honest services fraud if the court’s definition had been

limited to [a] basis that Skilling expressly approved”). Further, based on our

thorough examination of the record, Richards and Thomas have failed to

demonstrate that the jury verdict would have differed absent the instructional error.

See Neder v. United States, 527 U.S. 1, 19 (1999).

      3.     We vacate the guilty verdict against Harris on counts 1, 3, 4, 12, and

13, because we conclude that there is insufficient evidence to support the finding

that she knowingly and intentionally aided and abetted the bribery scheme

                                          3
underlying the nuisance abatement contract. However, we affirm the continuing

validity of Harris’s honest services fraud convictions related to the CBL

transportation scheme, because the record sufficiently permits the jury’s inference

of Harris’s knowledge and intent in furthering the honest services fraud.1

      4.     The district court did not abuse its discretion in denying defendants’

motion to vacate the remaining guilty verdicts based on prejudicial spillover from

the now invalid counts. We find no support in the record to conclude that the jury

relied on the invalid nondisclosure theory to satisfy the elements of the other,

separately charged and properly instructed, counts. Indeed, the evidence

supporting those convictions would either have been admissible in the absence of

the invalid nondisclosure theory, or was sufficiently distinct that no jury could

have been confused. Defendants have thus failed to establish “prejudice so

pervasive that a miscarriage of justice looms.” United States v. Lazarenko, 564

F.3d 1026, 1043 (9th Cir. 2009) (citation omitted); see also id. at 1044 (setting

forth considerations to guide assessment of prejudice spillover).

      5.     We remand this case to the district court for resentencing.




      1
        Because the guilty verdicts for money laundering, counts 22-29, are
predicated on a permissible theory of honest services fraud, we affirm their
continued validity.

                                          4
      When a defendant is sentenced on multiple counts and one of them is
      later vacated on appeal, the sentencing package comes “unbundled.”
      The district court then has the authority “to put together a new
      package reflecting its considered judgment as to the punishment the
      defendant deserve[d] for the crimes of which he [wa]s still convicted.”

United States v. Bennett, 363 F.3d 947, 955 (9th Cir. 2004) (alterations in original)

(quoting United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th Cir. 2000)).

Here, the district court sentenced defendants to a term of imprisonment on each

count to run concurrently. The district court thus did not differentiate among

counts in arriving at the ultimate sentence. Because we vacate guilty verdicts on

several honest services fraud counts against each defendant, we remand to the

district court to reconsider its sentence in light of the remaining counts of

conviction.

      AFFIRMED in part; REVERSED in part; REMANDED for

resentencing.




                                           5
                                                                              FILED
United States v. Harris, et al., Nos. 10-50476+                                JUL 10 2012

                                                                          MOLLY C. DWYER, CLERK
BYBEE, Circuit Judge, concurring in part and dissenting in part:            U.S. COURT OF APPEALS



      I concur in the disposition in its entirety except for the portion of numbered

paragraph 3 that vacates Harris’s conviction on counts 1, 3, 4, 12, and 13. I think

the evidence is sufficient to show that Harris knowingly and intentionally aided

and abetted the nuisance abatement bribery scheme. The record amply

demonstrates that Harris wrote checks to the AGS subcontractors for the actual

clean-up work and deposited the weekly checks from Jackson & Associates for

AGS’s cut of the proceeds; that she wrote checks from AGS to AMAC for

campaign flyers, which was the core of the bribery counts; that she lied about these

payments to the grand jury; and that she admitted that she made the payments from

AGS to AMAC to ensure that AGS could keep its contract. Harris received

hundreds of thousands of dollars as a result of her involvement. For me, this is

sufficient to uphold the jury’s verdict.
