                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 16 2011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. 10-30333

             Plaintiff - Appellee,               D.C. No. 3:09-cr-00287-MO

  v.
                                                 MEMORANDUM *
LESTER KASPROWICZ,

             Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                        Argued and Submitted July 15, 2011
                                Portland, Oregon

Before: PREGERSON and WARDLAW, Circuit Judges, and SEDWICK, **
District Judge.

       Lester Kasprowicz appeals his convictions on seven counts of mail fraud in

violation of 18 U.S.C. § 1341. We have jurisdiction pursuant to 28 U.S.C. § 1291;

we affirm and remand for additional findings.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
         The individual counts alleged in the indictment were properly premised on

individual mailings in furtherance of a single scheme to defraud. United States v.

Vaughn, 797 F.2d 1485, 1493 (9th Cir. 1986).

         Kasprowicz argues that the hallmark of a scheme to defraud is obtaining

money without provision of return services and that, because he provided

brokerage services, he could not have been involved in a scheme to defraud. The

defining characteristic of a scheme to defraud is actually deceit. United States v.

Milovanovic, 627 F.3d 405, 410 (9th Cir. 2010) (“Fraud generally means

deception, the use of misrepresentation to obtain something of value or deprive

another of something of value.”). A rational trier of fact could find that

Kasprowicz obtained money through deceit based on the evidence presented at

trial.

         A reasonable jury could also conclude that Kasprowicz intended to defraud

his customers based on his use of aliases and multiple business names–some of

which were similar to reputable moving and shipping companies–as well as

variance between the initial estimate and the final price, and all other aspects of the

scheme. That is true regardless of whether there are non-fraudulent explanations

for each action individually. See United States v. Nevils, 598 F.3d 1158, 1161 (9th

Cir. 2010) (en banc).


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      The portion of the jury instruction describing half-truths and concealment as

valid forms of misrepresentation was an accurate depiction of Ninth Circuit law.

United States v. Beecroft, 608 F.2d 753, 757 (9th Cir. 1979) (“Deceitful statements

of half-truths or the concealment of material facts is actual fraud under the

statute.”). If the elements of the mail fraud statute are proved, mail fraud has been

committed and no separate violation need be established. United States v. Green,

592 F.3d 1057, 1064 (9th Cir. 2010) (“[W]e believe it is settled that wire fraud

does not require proof that the defendant’s conduct violated a separate law or

regulation, be it federal or state law.”). The instructions did not allow for good

faith price estimates to form the basis of conviction. If the jury relied on

Kasprowicz’s price quotes, it was required to find that the quotes were falsely

made in order to deceive customers.

      The district court could reasonably conclude that the calculation in the Pre-

Sentence Report provided a reasonable estimate of the loss to the individual

victims. See U.S.S.G. § 2B1.1 cmt. n.3(C) (A district court “need only make a

reasonable estimate of the loss.”). Given the total loss attributable to relevant

conduct, even if Kasprowicz had been credited the entire amount of the loss to the

individuals, his sentence would have been subject to the same 10-level increase

that the district court employed. Consequently, any error in calculating the loss


                                          -3-
figure at sentencing was harmless. See United States v. Grissom, 525 F.3d 691,

696 (9th Cir. 2008).

      The losses to third-party businesses considered by the district court at

sentencing were attributable to relevant conduct. U.S.S.G. § 1B1.3(a)(1)(A),

(a)(2); U.S.S.G. § 1B1.3 cmt. n.9(A), (B). Sentence enhancements based on losses

to third-party businesses and individuals not named in the indictment did not

violate Kasprowicz’s Sixth Amendment right to a jury trial because the third-party

victims and their losses were only taken into account for purposes of determining

an advisory sentencing range. See United States v. Booker, 543 U.S. 220, 245

(2005).

      Assuming that evidence of loss to DEX One, Inc. had a disproportionate

effect on Kasprowicz’s sentence, the probative value of the records produced was

not undermined to the point that the records did not constitute clear and convincing

evidence that Kasprowicz had incurred the balances reflected.

      The district court included a two-point enhancement for obstruction of

justice based on perjury. See U.S.S.G. § 3C1.1 & cmt. n.4(b). Where a defendant

objects to such an enhancement, the district court must make additional findings

supporting it. United States v. Dunnigan, 507 U.S. 87, 95 (1993). However,

neither the testimony regarding Sally Cook nor that regarding falsified W-2 forms


                                         -4-
was material to Kasprowicz’s mail fraud convictions and therefore neither could

form the basis of an obstruction enhancement. United States v. Armstrong, 620

F.3d 1172, 1177 (9th Cir. 2010). The district court’s more general statement that

the evidence before it was sufficient to establish obstruction of justice did not

explicitly encompass the factual predicates of perjury. See id. Therefore, we

remand this case to the district court to reconsider whether the obstruction of

justice enhancement is warranted and for resentencing.

      AFFIRMED and REMANDED.




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