                                                                           FILED
                           NOT FOR PUBLICATION                             APR 20 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10171

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00064-RLH-
                                                 GWF-2
  v.

EVE MAZZARELLA,                                  MEMORANDUM*

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-10401

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00064-RLH-
                                                 GWF-2
  v.

EVE MAZZARELLA,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-10658

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00064-RLH-
                                                 GWF-2
  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
EVE MAZZARELLA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                   Roger L. Hunt, Senior District Judge, Presiding

                     Argued and Submitted November 17, 2014
                             San Francisco, California

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

      Eve Mazzarella appeals from her convictions related to a mortgage fraud

scheme. She raises challenges including an ineffective assistance of counsel claim,

and challenges to evidentiary rulings, jury instructions, and the sufficiency of the

evidence supporting several elements of her bank fraud convictions. We have

jurisdiction under 28 U.S.C. § 1291. On the issues covered by this memorandum

disposition, we dismiss in part and affirm in part.1

1.    Ineffective assistance of counsel claims are generally inappropriate on direct

appeal. United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003). We dismiss


      1
              We vacate and remand the district court’s denial of Mazzarella’s two
motions for a new trial in an opinion filed concurrently with this memorandum.
Because the district court on remand may ultimately vacate one or more of
Mazzarella’s convictions, requiring re-sentencing, we do not reach her arguments
related to sentencing error, which she may present again after the district court’s
proceedings on remand have concluded.

                                           2
Mazzarella’s claim because “the record on appeal is [not] sufficiently developed to

permit review” and “the legal representation [was not] so inadequate that it

obviously” denied Mazzarella her Sixth Amendment right to counsel. Id. (internal

quotation marks omitted). The record here does not show how the work of

preparing Curt Novy’s testimony was divided among counsel for the three co-

defendants, the depth of preparation, the reasons for declining to examine Novy on

re-direct, or on what basis, if any, Mazzarella’s trial counsel relied on co-

defendants’ counsel to adequately prepare for their assigned roles. Because

strategic choices made after thorough preparation will almost never constitute

ineffective assistance of counsel, see Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th

Cir. 2008), further development of the record is needed to determine which, if any,

of the failures alleged by Mazzarella were such strategic choices.

      Because of the strong presumption of attorney competence, see United

States v. Ferreira-Alameda, 815 F.2d 1251, 1253–54 (9th Cir. 1987) (as amended),

the representation was not so inadequate on the face of the existing record that

Mazzarella was obviously deprived of her rights. Even in combination with an

unimpressive opening statement and closing argument, the heart of Mazzarella’s

claims is based on the Curt Novy testimony, and we cannot say from the record




                                           3
what choices were made by Mazzarella’s trial counsel or why, nor can we conclude

whether his performance was ineffective.2

2.    The district court did not abuse its discretion in making its evidentiary

rulings. A good faith belief that the victim will be repaid and will sustain no loss is

no defense to fraud. United States v. Molinaro, 11 F.3d 853, 863 (9th Cir. 1993).

It is irrelevant that Mazzarella may have transferred monies, after obtaining them

fraudulently, to legitimate business entities she created to make mortgage

payments and pay for repairs to the purchased properties. United States v. Thomas,

32 F.3d 418 (9th Cir. 1994), is distinguishable: Thomas involved a mail fraud

scheme in which the defendant inflated fruit prices to growers at some points and

underpriced them at others as part of an averaging plan, and we held that it was

error to exclude testimony of overpayments to growers because it went toward his

intent to defraud. Id. at 419, 420–22. Here, the evidence proffered by Mazzarella

does not speak to whether she intended to obtain money from the lending banks

through material misstatements, but only to what she did with that money after the

fraud was complete.




      2
             We express no opinion whether Mazzarella can present any valid
claims of ineffective assistance of counsel on an adequate record through a motion
under 28 U.S.C. § 2255.

                                           4
      Even assuming that the district court abused its discretion by permitting the

government to introduce evidence that suggested only Mazzarella’s greed instead

of showing a required element of any offense, we conclude that the admission did

not more likely than not affect the verdict and was harmless. See United States v.

Pang, 362 F.3d 1187, 1192 (9th Cir. 2004).

3.    The district court did not abuse its discretion concluding that Mazzarella did

not establish a factual foundation needed to support her requested advice-of-

counsel jury instruction. See United States v. Urena, 659 F.3d 903, 906 (9th Cir.

2011). An advice-of-counsel instruction requires a showing that Mazzarella “made

a full disclosure of all material facts to [her] attorney and that [she] then relied” on

the course of conduct recommended in good faith. United States v. Bush, 626 F.3d

527, 539 (9th Cir. 2010). Here, there was no evidence that Mazzarella or her co-

defendants disclosed to their attorney that they intended to use false information on

the straw buyers’ loan applications, and the attorney testified that had he known as

much, he would have advised against their plan. As for the requested good-faith

instruction, our precedents are clear that a good-faith instruction is not required

where the district court instructs adequately on intent, see United States v. Shipsey,

363 F.3d 962, 967 (9th Cir. 2004) (as amended), and there is no dispute that it did

so here.


                                            5
4.    After construing the evidence “in the light most favorable to the

prosecution,” we conclude that a “rational trier of fact could have found the

essential elements of [bank fraud] beyond a reasonable doubt.” United States v.

Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (internal quotation marks

omitted). We reject Mazzarella’s contentions that as to her six bank fraud

convictions, there was insufficient evidence to establish that she knowingly carried

out a plan to obtain money from Amtrust Bank through false statements, that she

acted with the intent to defraud, or that the banks were federally insured at the time

of the relevant transactions. Mazzarella argues that to the extent there is evidence

that Mazzarella carried out a plan or scheme, its target was MVP Financial

Services, a brokerage firm listed as the lender on the documents Mazzarella says

she saw, rather than Amtrust. But Skip Young, an MVP employee and one of

Mazzarella’s confederates, testified that before he took his position at MVP, he

explained to Mazzarella that MVP was a broker with access to about eighty banks.

Young also testified that mortgage payments on one of the properties purchased in

the scheme were made to Amtrust—the lender that issued the mortgage on that

property—using checks that were signed by Mazzarella. Other testimony

explained that Amtrust provided all the relevant funding. A reasonable jury could

have concluded based on Young’s testimony that Mazzarella intended to defraud a


                                          6
bank, and that she knew Amtrust was a lender at the time false loan applications

were submitted.

      There was also sufficient evidence showing that Amtrust was federally

insured at the time of the fraudulent transactions. Alicia Hanna, who worked as a

fraud investigator at Amtrust from 2001 through 2009, testified in the past

tense—albeit in response to a question asked in the present tense—that Amtrust

was a federally insured bank, and the surrounding context suggests she was

referring to the period in which the fraudulent loan applications were made. The

transactions occurred between December 2006 and June 2007, all during Hanna’s

tenure at Amtrust. Also, several loan documents, introduced as exhibits and

bearing dates from December 2006 and March 2007, demonstrated that Ohio

Savings (the same entity as Amtrust) was federally insured by identifying it as

“Ohio Savings Bank, FSB.” This is distinguishable from United States v. Ali, 266

F.3d 1242, 1244 (9th Cir. 2001), where we held that present-tense trial testimony

that a bank is federally insured and a single certificate of insurance from a decade

before the relevant transaction is insufficient to show a bank was federally insured

at the relevant time.

5.    Except for errors discussed in the concurrently filed opinion, we reject

Mazzarella’s contentions related to specific alleged errors, and we also reject her


                                          7
cumulative error claim. No error she has identified supports reversal individually

or in the aggregate.

      DISMISSED in part, AFFIRMED in part.




                                         8
