                                                                            FILED
                              NOT FOR PUBLICATION                            JUL 05 2011

                                                                         MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                          No. 10-10111

                 Plaintiff - Appellee,             D.C. No. 3:00-cr-00505-WHA-3

     v.
                                                   MEMORANDUM *
CHARLES W. MCCALL,

                 Defendant - Appellant.



                       Appeal from the United States District Court
                         for the Northern District of California
                       William H. Alsup, District Judge, Presiding

                          Argued and Submitted April 13, 2011
                               San Francisco, California

Before: KOZINSKI, Chief Judge, N.R. SMITH, Circuit Judge, and BLOCK,
Senior District Judge.**


1.        Given that McCall’s attorney elicited testimony from Dooley that he didn’t

“know one way or the other” whether McCall’s statements reflected what he knew


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
at the time or what he knew in hindsight, McCall wasn’t prejudiced by the

admission of Dooley’s statements. See United States v. Shapiro, 879 F.2d 468,

472 (9th Cir. 1989).

2.    Excluding Bergonzi’s testimony about Hawkins’s statements as hearsay,

even if error, was harmless because Bergonzi’s prior testimony was substantive

evidence that he told McCall that Hawkins was working with the auditors. See

Pope v. Saving Bank of Puget Sound, 850 F.2d 1345, 1356 (9th Cir. 1988).

3.    It is “clear beyond a reasonable doubt that a rational jury would have found

[McCall] guilty” even without the reckless disregard instruction. United States v.

Gracidas-Ulibarry, 231 F.3d 1188, 1197 (9th Cir. 2000) (en banc) (quoting Neder

v. United States, 527 U.S. 1, 18 (1999)). The jury found that McCall knowingly

and willfully circumvented internal controls, which required actual knowledge, and

was not affected by the reckless disregard instruction. To convict on this count, the

jury must have found that McCall knew that the side-letter agreements were being

used to improperly recognize revenue. Because these same side-letter agreements

also formed the basis of the alleged scheme to defraud, the jury likely convicted

McCall of the securities fraud counts based on actual knowledge, rendering any

error in the reckless disregard instruction harmless.

      AFFIRMED.


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