                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 31 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50102

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01005-TJH-27

  v.
                                                 MEMORANDUM*
SHONTOVIA D. DEBOSE,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50191

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01005-TJH-44

  v.

ME ARLENE SETTLE, AKA Me Arlene
Leavasa, AKA Me Arlene Logovii,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-50231

              Plaintiff - Appellee,              D.C. No. 2:09-cr-01005-TJH-2



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  v.

NICHOLE MICHELLE MERZI, AKA
Nichole Mahmoud Merzi,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                         No. 12-50323

              Plaintiff - Appellee,               D.C. No. 2:09-cr-01005-VBF-30

  v.

ANTHONY DONNEL FULLER,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                   Terry J. Hatter, Senior District Judge, Presiding

                     Argued and Submitted December 10, 2014
                               Pasadena, California

Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.

       In this consolidated criminal appeal, four co-defendants (Merzi, Debose, Settle,

and Fuller) appeal their convictions for their participation in a bank and wire fraud

conspiracy. The conspiracy involved unindicted co-conspirators in Egypt who




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fraudulently transferred money from victims to American accounts set up by the

defendants, among others.

      Merzi claims her participation in the conspiracy was coerced by her then-

boyfriend Kenneth Lucas, the ringleader of the conspiracy. Merzi also argues that the

district court improperly precluded evidence of Lucas’s domestic violence in support

of her duress defense. The district court did not err when it precluded Merzi from

presenting an affirmative defense of duress because Merzi did not make a prima facie

showing of duress. United States v. Ibarra-Pino, 657 F.3d 1000, 1005 (9th Cir. 2011).

The district court also did not abuse its discretion when it denied Merzi’s motion for

continuance to substitute counsel because the district court’s ruling was not illogical,

implausible, or without support in the record. United States v. Hinkson, 585 F.3d

1247, 1261–63 (9th Cir. 2009) (en banc) (abuse of discretion test); United States v.

Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985) (factors a court considers for motions for

continuances). Therefore as to Merzi, the district court’s judgment is AFFIRMED.

      Debose, Fuller, and Settle each claim that there was insufficient evidence to

support their convictions.1 There indeed was insufficient evidence to convict Debose,

Fuller, and Settle of the conspiracy count because the government did not prove

      1
         All three fraudulently created bank accounts. Debose was convicted only
of the conspiracy to commit bank and wire fraud. Fuller and Settle, however, were
convicted of the conspiracy and of substantive bank fraud.

                                          -3-
beyond a reasonable doubt that any of the three “‘embraced the common purpose of

the conspiracy.’” United States v. Umagat, 998 F.2d 770, 773–74 (9th Cir. 1993)

(quoting United States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984)). We therefore

VACATE the conspiracy convictions for Debose, Fuller, and Settle. There was,

however, sufficient evidence to convict Fuller and Settle of substantive bank fraud,

and their convictions on those counts are therefore AFFIRMED. We REMAND to

the district court with instructions to vacate Debose’s sentence and to resentence

Fuller and Settle.




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