                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 30 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10098

              Plaintiff-Appellee,                D.C. No.
                                                 1:12-cr-00030-RVM-1
 v.

MELVIN G. ADA,                                   MEMORANDUM*

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   16-10323

              Plaintiff-Appellee,                D.C. No. 1:12-cr-00030-1

 v.

MELVIN G. ADA,

              Defendant-Appellant.


                   Appeal from the United States District Court
                  for the District of the Northern Mariana Islands
                   Ramona V. Manglona, Chief Judge, Presiding

                      Argued and Submitted October 12, 2017
                               U. of Hawaii Manoa

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

      Melvin G. Ada appeals the District Court’s application of several sentencing

enhancements and departures after his guilty plea convictions for theft or

embezzlement (18 U.S.C. §§ 669 and 2), health care fraud (18 U.S.C. §§ 1347 and

2), and money laundering (18 U.S.C. §§ 1956(a)(1)(B)(i) and 2). He further

appeals the District Court’s restitution award to Midwest Medical Supply

Company (“MMS”). 18 U.S.C. §§ 3663, 3663A, 3664. The Government has

conceded that the restitution award was excessive and we remand for its

recalculation. We otherwise affirm.

      Ada first argues that the District Court erred in applying a two-level

sophisticated means enhancement to his theft and fraud convictions. See U.S.S.G.

§ 2B1.1(b)(10)(C). Under the U.S. Sentencing Guidelines, sophisticated means

involves “especially complex or especially intricate offense conduct pertaining to

the execution or concealment of an offense.” U.S.S.G. § 2B1.1(b)(10)(C), app.

n.9. Although the Guidelines give examples such as use of offshore financial

accounts to hide assets or transactions, the Guidelines do not require such conduct.

See U.S.S.G. § 2B1.1(b)(10)(C), app. n.9. Ada opened and used bank accounts

with names deceptively similar to MMS to deposit stolen MMS checks, and he



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manipulated financial records to conceal his fraudulent scheme. The District Court

did not err in applying the sophisticated means enhancement. See United States v.

Tanke, 743 F.3d 1296, 1307-08 (9th Cir. 2014).

      Similarly, Ada argues that the District Court erred in imposing a two-level

sophisticated money laundering enhancement to his money laundering convictions.

See U.S.S.G. § 2S1.1(b)(3). Although the Guidelines note that sophisticated

laundering typically involves the use of fictitious entities, shell corporations, or

offshore financial accounts, such conduct is not required for the enhancement to

apply. See U.S.S.G. § 2S1.1(b)(3), app. n.5. Ada deposited and transferred

numerous stolen checks through multiple bank accounts with deceptive names.

Thus, the District Court did not abuse its discretion in imposing the sophisticated

laundering enhancement.

      Next, Ada asserts that the District Court erred in imposing a two-level

leadership enhancement to his money laundering convictions. The Guidelines

allow a two-level increase “[i]f the defendant was an organizer, leader, manager, or

supervisor in any criminal activity” involving “one or more other participants.”

U.S.S.G. § 3B1.1(c) & app. n.2. A participant is someone “who is criminally

responsible for the commission of the offense” even if acquitted. U.S.S.G. §

3B1.1(c), app. n.1; see also United States v. Dota, 33 F.3d 1179, 1188-89 (9th Cir.


                                            3
1994). Ada’s wife’s participation was proved by a preponderance of the evidence.

Dota, 33 F.3d at 1189. The District Court therefore did not clearly err in imposing

the leadership enhancement. See United States v. Alonso, 48 F.3d 1536, 1545 (9th

Cir. 1995).

      Ada further contends that the District Court impermissibly double-counted

when it departed upward three levels on the basis of disruption of a governmental

function and public welfare endangerment. Ada’s embezzlement caused the

government’s hospital significant disruption by forcing the closure of its peritoneal

dialysis clinic for several months. See U.S.S.G. § 5K2.7. His conduct also

endangered the public health by forcing patients to undergo more serious

treatment, including emergency surgery, after the clinic’s closure. See U.S.S.G. §

5K2.14. Therefore, the District Court did not abuse its discretion in departing

upward from the Guidelines. See United States v. Sablan, 114 F.3d 913, 917 (9th

Cir. 1997) (en banc).

      The District Court erred in awarding MMS restitution in the amount of

$132,565.08. During the restitution hearing, MMS presented testimony, e-mail

correspondence, and eleven invoices, claiming that the Commonwealth Health

Center (“CHC”) had not paid it $76,914.45, but MMS’s presentation established

only that CHC refused to pay the eleven invoices. The Government concedes that


                                          4
MMS failed to establish that Ada caused CHC’s failure to pay MMS the

$76,914.45. See United States v. Swor, 728 F.3d 971, 974 (9th Cir. 2013). That

portion of the award is not supported. We therefore vacate the restitution award

and remand to the District Court for a proper determination.

      AFFIRMED in part, VACATED in part, and REMANDED.




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