                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 05 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 13-10449
                                                      14-10340
              Plaintiff-Appellee,
                                                 D.C. No.
 v.                                              2:10-cr-00223-JAM-1

HODA SAMUEL,
                                                 MEMORANDUM*
              Defendant-Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                       Argued and Submitted March 18, 2016
                            San Francisco, California

Before: NOONAN, GOULD, and FRIEDLAND, Circuit Judges.

      In case number 13-10449, appellant Hoda Samuel challenges her conviction

of thirty counts of mail fraud and one count of conspiracy for (1) committing mail

fraud and (2) making false statements to loan companies insured by the Federal

Deposit Insurance Corporation (FDIC). Samuel was a licensed real estate broker



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
who owned a real estate agency and brokerage firm. Samuel’s convictions stem

from her activities engineering thirty fraudulent real estate transactions in which

she submitted loan applications to lending institutions with false information about

the financial status of her client-buyers. This scheme included inflating the sellers’

asking prices so that the lenders issued loans for more than the real estate cost,

leaving Samuel’s clients with cash back. This gave buyers added incentive to

purchase the real estate, and Samuel benefitted because she received commission

from each transaction.

      In case number 14-10340, Samuel challenges the manner in which the

district court calculated the restitution payment she owed to the institutions she

defrauded, and her physical absence from her restitution hearing.

We affirm the conviction, sentence, and restitution order.

Case number 13-10449:

      1.     The district court did not err in denying Samuel’s motion to dismiss

the indictment for alleged violations of the Speedy Trial Act, 18 U.S.C. § 3161 et.

seq. Samuel argues that the district court violated the Speedy Trial Act by failing to

make factual findings supporting the exclusions of time it ordered and to weigh the

“ends of justice” exceptions against the public’s and her interests in a speedy trial.

We review the district court’s decision for “clear error as to factual findings and de


                                           2
novo as to application of legal standards.” United States v. Alvarez-Perez, 629 F.3d

1053, 1056-57 (9th Cir. 2010).

      Samuel’s motion to dismiss the indictment for violations of the Speedy Trial

Act was based on five separate district court orders excluding time. The district

court made specific factual findings supporting the “ends of justice” reasons it

cited on each of the occasions it ordered an exclusion of time and therefore did not

err in denying Samuel’s motion.1 Samuel’s argument that the district court failed to

conduct an explicit balancing test explaining why the “ends of justice” reasons it

cited for granting the continuances outweighed the public’s and her interests in a

speedy trial is unavailing because this court does not require such explicit

balancing. See, e.g., United States v. Shetty, 130 F.3d 1324, 1330 (9th Cir. 1997)

(stating that the district court satisfied the Speedy Trial Act by citing “undisputed

facts to support each continuance at issue”).

      Samuel also argues that the district court violated her right to a speedy trial

when it ordered exclusions of time on two occasions after Samuel moved to

dismiss the indictment. Because Samuel did not argue that these later exclusions of


      1
       That the court, in making its factual findings, adopted stipulated facts is of
no moment. United States v. Ramirez-Cortez, 213 F. 3d 1149, 1157 n.9 (9th Cir.
2000) (“District Courts may fulfill their Speedy Trial Act responsibilities by
adopting stipulated factual findings which establish valid bases for Speedy Trial
Act continuances.”).
                                           3
time violated her right to a speedy trial before the district court, this argument is

waived. United States v. Wirsing, 867 F.2d 1227, 1230 (9th Cir. 1989). Lastly,

Samuel argues that the district court violated her right to a speedy trial by ordering

exclusions of time prior to setting a trial date. Samuel’s argument is without merit

because neither of the out-of-circuit cases she cites require the trial court to set a

trial date, nor do they impose a sanction under the Speedy Trial Act for failing to

do so. See, e.g., Beech-Nut Nutrition Corp. 871 F.2d 1181, 1198 (2d Cir. 1989)

(stating that “[t]hough it would perhaps generally be preferable for the court

initially to set a tentative trial date, it is not an abuse of discretion . . . to postpone

the setting of a date until the extent of the needed pretrial proceedings becomes

clearer, so long as there is no intent or appearance that unlimited or undue delay

will be permitted”).

       2.     The evidence supporting Samuel’s mail fraud convictions under 18

U.S.C. § 1341 was sufficient to support Samuel’s convictions. Samuel argues that

the Government’s evidence was insufficient because it failed to prove that (1) the

deeds of trust the Government used to establish mail fraud were in fact mailed, and

(2) these mailings furthered Samuel’s fraudulent scheme. We review de novo an

appellant’s claim of insufficient evidence to support a mail fraud conviction. See

United States v. Bennett, 621 F.3d 1131, 1135 (9th Cir. 2010). There is sufficient


                                              4
evidence to support a conviction if, viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. United States v.

Stanton, 501 F.3d 1093, 1099-1100 (9th Cir. 2007).

      In order for the Government to convict Samuel of mail fraud under 18

U.S.C. § 1341 it must show that (1) Samuel participated in a scheme to defraud and

(2) Samuel used the mail for the purpose of executing the scheme. Pereira v.

United States, 347 U.S. 1, 8 (1954). In establishing that a defendant used the mail

in executing the fraudulent scheme, the Government may rely on circumstantial

evidence. United States v. Green, 745 F.2d 1205, 1208 (9th Cir. 1984). In this case,

the Government introduced circumstantial evidence demonstrating that the county

recorder mailed the deeds of trust to the relevant lending institutions. This evidence

included copies of most of the deeds of trust from the lenders’ files bearing the

county recorder’s stamp and testimony from lending institution employees stating

that it was part of the normal course of business to receive copies of deeds of trust

through the mail. Concerning the instances where the lending institution did not

have a deed of trust bearing the county recorder’s stamp, the Government

introduced documents from the county recorder indicating that it had mailed copies

of the deeds to the lender. This evidence was bolstered by the stipulation entered


                                           5
into at trial that the “original paper version of the recorded deed [was] mailed by

the United States Postal Service to the party that requested the recording.”

Samuel’s claim that the Government’s evidence of the mailings was insufficient is

therefore without merit.

      In establishing that the mailings were “for the purpose of” executing the

scheme, the Government does not need to demonstrate that the mailings were “an

essential element of the scheme,” but only that they were “incident to an essential

part of [it].” United States v. Lo, 231 F.3d 471, 478 (9th Cir. 2000) (quoting

Pereira, 231 F.3d at 8). This Court has held that a county recorder’s mailing of

deeds of trust to a lending institution is incident to an essential part of a fraudulent

scheme, as the scheme was conceived by the perpetrator. Id. In Lo, which involved

a similar mortgage fraud scheme, this court held that a jury could reasonably have

found that the “routine mailings of the deeds to the owner of the property interest

was incidental to an essential aspect of this overall sham sale scheme.” Id. at 479.

“The mailings could serve to ‘lull the victims’ . . . ‘into a false sense of security,

postpone their ultimate complaint to the authorities, and therefore make the

apprehension of the defendants less likely,’ by assuring . . . that the conveyance of

the property had gone forward in accordance with the usual procedures.” Id. A jury

here likewise could have reasonably found that Samuel’s scheme as conceived


                                            6
included this “lulling” component. Samuel’s sufficiency of the evidence argument

thus additionally fails on these grounds.

       3.     Samuel argues for the first time before this Court that her conviction

for conspiracy should be reversed because there was insufficient evidence

establishing that her scheme defrauded an FDIC-insured lender. We review a claim

of insufficient evidence raised for the first time on appeal for plain error. United

States v. King, 735 F.3d 1098, 1106 (9th Cir. 2013). Samuel was convicted of one

count of dual object conspiracy under 18 U.S.C. § 371, which makes it illegal to

conspire to commit a federal offense or to defraud a United States agency. The jury

found Samuel guilty of both conspiring to commit mail fraud in violation of 18

U.S.C. § 1341, and conspiring to make false statements on loan applications to

FDIC-insured lending institutions. The conspiracy conviction would therefore

stand based solely on the jury’s determination that Samuel conspired to commit

mail fraud in violation of 18 U.S.C. § 1341. See United States v. Manarite, 44 F.3d

1407, 1413 (9th Cir. 1995) (recognizing that multiple object conspiracy

convictions can stand provided that any one of the objects supports the conviction

and that it is clear that the jury found the defendant guilty of conspiracy with

respect to that object).




                                            7
4.    The district court did not err in applying an enhancement for an abuse of

trust under U.S.S.G. § 3B1.3. Samuel argues that the sentencing enhancement does

not apply because a real estate broker is not a position of trust. Because Samuel

challenged this enhancement before the district court, albeit on different grounds,

we review this claim de novo. See United States v. Charles, 581 F.3d 927, 933-34

(9th Cir. 2009).

      The enhancement for an abuse of position of trust applies when a defendant

“abused a position of public or private trust, or used a special skill, in a manner that

significantly facilitated the commission or concealment of the offense . . . .”

U.S.S.G. § 3B1.3. A “position of public or private trust” is one “characterized by

professional or managerial discretion.” Id. at cmt. 1. Because in this case Samuel

held a managerial role as the owner of both a real estate firm and mortgage

brokerage, and used that position of authority to perpetrate the scheme, the district

court properly applied the sentencing enhancement. United States v. Laurienti, 731

F.3d 967, 973 (9th Cir. 2013) (holding that “the presence or lack of ‘professional

or managerial discretion’ represents the decisive factor in deciding whether a

defendant occupied a position of trust”).




                                            8
Case number 14-10340:

      1.     This case does not need to be remanded because it was clear that the

district court ordered restitution based on the Mandatory Restitution Victims’ Act

(MVRA), 18 U.S.C. § 3663A. We review the legality of a restitution order de novo

and the factual findings supporting the order for clear error. United States v. Luis,

765 F.3d 1061, 1065 (9th Cir. 2014). “Provided that it is within the bounds of the

statutory framework,” we review the amount awarded by a restitution order for

abuse of discretion. Id. (quoting United States v. Brock–Davis, 504 F.3d 991, 996

(9th Cir. 2007)).

      Samuel argues that the district court’s failure to articulate the statutory basis

for the restitution order makes it impossible for this Court to review its legality,

thus necessitating a remand. This is incorrect. Samuel herself recognized in her

restitution hearing brief that the district court ordered restitution as “required by

the Mandatory Victims Restitution Act of 1996.” This was obviously true to all

concerned. Under the MVRA, restitution is mandatory for “any offense committed

by fraud or deceit [under this title].” 18 U.S.C. § 3663A(c)(1). Samuel was

convicted of mail fraud, conspiracy to commit mail fraud, and making false

statements in mortgage applications, all under Title 18. Further, Samuel’s

presentence report stated that restitution would be imposed because it was


                                            9
mandatory, and the district court stated at Samuel’s sentencing hearing that

restitution would be mandatory. Thus, there is no need for this court to remand this

case for further clarification regarding the basis for the district court’s restitution

order.

         2.     Samuel was not deprived of her constitutional due process or

statutory rights under Fed. R. Crim. P. 43 by the district court’s decision not to

order her transported to the restitution hearing.2 A defendant has a constitutional

right to be present at every “‘critical stage’ of the trial.” United States v.

Rosales-Rodriguez, 289 F.3d 1106, 1109 (9th Cir. 2002). However, a defendant’s

absence only violates due process “to the extent that a fair and just hearing would

be thwarted by [this] absence, and to that extent only.” Id. (quoting United States v.

Gagnon, 470 U.S. 522, 526 (1985) (per curiam). If the defendant’s absence does

rise to the level of a due process violation, “the burden is on the prosecution to

prove that the error was harmless beyond a reasonable doubt.” Id.

         Under Fed. R. Crim. P. 43, “[a] defendant also has a statutory right to be

present at ‘every trial stage’ as well as at ‘sentencing.’” United States v. Marks,


         2
        On March 17, 2015, Samuel filed a motion asking this court to take judicial
notice of administrative documents she submitted to the prison appealing the
warden’s decision denying her request to be transported to her restitution hearing
and to receive her electronically-stored defense files. We grant this motion and
have taken notice of these documents.
                                            10
530 F.3d 799, 812-13 (9th Cir. 2008) (quoting Rule 43). “If the denial of the right

to be present represents only a statutory violation, then ‘the defendant’s absence is

harmless error if there is no reasonable possibility that prejudice resulted from the

absence.’” Id. at 813 (quoting Rosales-Rodriguez, 289 F.3d at 1109.) (internal

quotation marks omitted).

      Due to health concerns, Samuel participated in the hearing by video

conference. She was able to present her case to the court: she testified in her

defense, and made an additional statement after the court heard argument from her

counsel and the Government. There is no indication that Samuel was prejudiced in

any way by not being physically present at the hearing.3 There is thus no reason to

believe that a “fair and just hearing [was] thwarted” by Samuel’s physical absence,




      3
         At best, Samuel vaguely states in her Reply Brief, without elaboration, that
she had moved for the hearing to be continued because she had been “denied her
right to review the records of the case and thus could not adequately confer with
her attorney.” Samuel failed to argue this point in her opening brief, and, in any
event, does not explain how this supposed denial of her right to review records had
anything to do with her physical absence at the restitution hearing, or how any lack
of access to records or her attorney prevented her from making any argument or
otherwise rendered the hearing unjust in any way. See Entm’t Research Grp., Inc.
v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997) (“We will not
consider any claims that were not actually argued in the opening brief,” nor will we
consider argument not “specific[ally] and cogent[ly]” presented for our
consideration.).
                                          11
nor any “reasonable possibility that prejudice resulted from the absence.” Rosales-

Rodriguez, 289 F.3d at 1109.

      3.     The district court’s restitution order is substantively correct because it

calculated restitution in accord with controlling Supreme Court precedent. See

Robers v. United States, 134 S. Ct. 1854 (2014). Samuel argues that the district

court erred in (1) calculating the amount of the restitution order, (2) granting

restitution to institutions with insufficient evidence demonstrating that they were

the injured parties, and (3) admitting exhibits, including charts of the lending

institutions’ losses, without properly laying the foundation for their admissibility

as business records. The district court correctly calculated Samuel’s restitution by

offsetting the loss amount with the amount recovered by the institutions through

the sale of the properties following foreclosure, rather than the value of the

properties at the time the institutions took title of them in foreclosure. Id. at 1857-

58. There is no evidence in the record indicating that any entity other than those

claiming restitution were injured as a consequence of the fraud, thus rendering

Samuel’s argument to the contrary meritless. Finally, Samuel’s argument

concerning the admissibility of the challenged exhibits is not persuasive because

the rules of evidence do not apply to sentencing proceedings.




                                           12
     We therefore AFFIRM the district court’s decisions with respect to both

cases 13-10449 and 14-10340.




                                      13
