                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 05 2016
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50471

              Plaintiff - Appellee,              D.C. No. 8:11-cr-00209-JLS-1

 v.
                                                 MEMORANDUM*
ARTURO S. RUIZ, AKA Art Oliva,
AKA Ruiz Oliva, AKA Simon Oliva,
AKA Arturo Simon Ruiz, AKA Arturo
Simon Ruiz-Oliva, AKA Arturo Simon,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-50465

              Plaintiff - Appellee,              D.C. No. 8:11-cr-00209-JLS-9

 v.

SUEMY L. GONGORA,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 15-50052



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                  page 2

              Plaintiff - Appellee,                D.C. No. 8:11-cr-00209-JLS-11

 v.

SANDRA KAY LYNCH,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                    Josephine L. Staton, District Judge, Presiding

                         Argued and Submitted May 5, 2016
                               Pasadena, California

Before:      KOZINSKI, W. FLETCHER and GOULD, Circuit Judges.


      1.     Defendant Arturo Ruiz claims that the district court violated his

statutory right to a speedy trial when it continued the trial date for all defendants to

January 15, 2013. The Speedy Trial Act excludes a “reasonable period of delay”

for joint trials and when the ends of justice so require. 18 U.S.C. § 3161(h)(6),

(h)(7). Here, Ruiz’s trial was joined with multiple co-defendants. Some of Ruiz’s

co-defendants stipulated to the continuances and another requested a delay because

of a scheduling conflict. Ruiz even indicated he would have difficulty reviewing

the voluminous discovery by the time of the continued trial date. The district court

properly found that it was not appropriate to sever Ruiz’s trial because of the
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complexity of the case, the interrelated conspiracy charges and the overlapping

evidence. The delay here was reasonable and the district court properly excluded

time as to all defendants.


       2.     Ruiz contends that the delay violated his Sixth Amendment

right to a speedy trial. To determine whether a defendant’s Sixth Amendment

rights were violated, we examine four factors: (1) the length of delay, (2) the

reason for the delay, (3) the defendant’s assertion of his right and (4) the prejudice

to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972).

      Here, the district court continued the trial for over a year. We have found a

delay of five years acceptable when properly justified and not prejudicial. See

Stuard v. Stewart, 401 F.3d 1064, 1068 (9th Cir. 2005) (citation omitted). The

reason for the delay in Ruiz’s case was to facilitate review of the large amount of

discovery, ensure all defendants were tried together and accommodate defense

counsel schedules in the complex, multi-defendant case. Ruiz did promptly assert

his right to a speedy trial and sought severance from his co-defendants. But “the

mere fact of proper, timely assertion does not warrant dismissal.” United States v.

Turner, 926 F.2d 883, 889 (9th Cir. 1991). Lastly, Ruiz wasn’t prejudiced by any

delay. A delay prejudices the defendant if the delay is granted for the primary
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purpose of allowing co-defendants to pursue plea negotiations with the government.

United States v. Lewis, 611 F.3d 1172, 1178 (9th Cir. 2010). One co-defendant did

cooperate with the government, but that was not the purpose of the delay, and it was

only one co-defendant out of eighteen. See id. Thus, Ruiz’s constitutional right to

a speedy trial wasn’t violated.


      3.     Defendants Suemy Gongora and Ruiz argue that the government

“targeted Hispanics” for criminal prosecution of original issue discount (OID)-

based tax fraud cases “while pursuing only civil penalties against non-Hispanics for

similar conduct.” Ruiz also argues, relatedly, that the government improperly used

the grand jury to investigate already indicted defendants, though he does not allege

that it was used against him. The district court found no evidence of improper use

of the grand jury testimony and Ruiz points to none.

      To succeed on a selective prosecution claim, Ruiz and Gongora must show

that “(1) other similarly situated individuals have not been prosecuted and (2)

[their] prosecution was based on an impermissible motive.” United States v.

Sutcliffe, 505 F.3d 944, 954 (9th Cir. 2007).

      Ruiz and Gongora compare their cases to two civil cases involving OID tax

fraud where defendants who, “[a]part from their last name,” were similarly situated
                                                                                page 5
to Ruiz and Gongora but weren’t charged criminally: United States v. Adams, No.

2:10-cv-1852-AHM-SSx (C.D. Cal. Sept. 28, 2010), and United States v. Kirk, No.

C11-1075-MJP (W.D. Wa. Apr. 2, 2012). Adams and Kirk are inapposite. Ruiz

and Gongora’s cases involved complex and large-scale fraudulent tax preparation,

nineteen defendants and approximately $250 million in false income tax refund

claims. Their cases differ from Adams and Kirk as to the extent of the fraud, the

degree of sophistication required, the number of persons involved, the amount of

actual or intended loss and the prior histories or related conduct of certain members

of the scheme.

      The government also points to criminal charges filed in a number of OID

fraud cases involving defendants with seemingly non-Hispanic surnames. See

Indictment, United States v. Brekke, No. 2:10-CR-00328-JCC (W.D. Wash. Nov. 3,

2010), ECF No. 1; Indictment, United States v. Morris, No. 1:10-cr-00317-REB (D.

Colo. June 8, 2010), ECF No. 5; Indictment, United States v. Poynter, No. 4:11-cr-

00223-BCW (W.D. Mo. Sept. 21, 2011), ECF No. 1. Therefore, there is neither

evidence supporting nor grounds for further discovery on defendants’ conclusory

claim of impermissible motive.


      4.     Ruiz argues that the district court erred by admitting evidence of the
                                                                                     page 6
land patent scheme. Under Federal Rule of Evidence 404(b), “other act” evidence

may be admitted when it is necessary to “offer a coherent and comprehensible story

regarding the commission of the crime.” United States v. Vizcarra-Martinez, 66

F.3d 1006, 1012–13 (9th Cir. 1995). The district court did not err in admitting the

evidence because it was used to explain how the Old Quest conspirators met each

other and garnered customers. The challenged evidence comprised only a small

percentage of the total evidence proffered by the government, and any prejudicial

effect was outweighed by its probative value. See Fed. R. Evid. 403.


      5.     Defendant Sandra Lynch argues that the district court erred by

allowing evidence of her previous failure to file taxes to be introduced at trial.

Evidence of prior acts may be admitted if it is probative of issues of intent,

knowledge, good faith and absence of mistake. Fed. R. Evid. 404(b)(2); United

States v. Jenkins, 785 F.2d 1387, 1395 (9th Cir. 1986). Here, Lynch’s failure to file

her tax returns for five years was sufficiently probative of her intent, knowledge,

lack of good faith and absence of mistake in engaging in the tax fraud activities at

Old Quest. Given that both categories of activities involved defrauding the IRS

with tax filings, the district court did not abuse its discretion by allowing the
                                                                                 page 7
evidence under Rule 404(b). The district court also gave a limiting instruction,

curing any error.


      6.     Gongora claims the district court erred in excluding her proffered

demonstration of attempting to testify in English to show that she had difficulty

speaking English. She argues that this violated her constitutional right to present a

defense. We review for abuse of discretion a district court’s determination of

whether a defendant requires an interpreter or can forego one and testify in English.

United States v. Petrosian, 126 F.3d 1232, 1234–35 & n.3 (9th Cir. 1997). Here,

Gongora requested the use of an interpreter during the pendency of her trial and was

assigned one by the court. The district judge concluded that it would be

inappropriate and “circus-like” to allow Gongora to forego her assigned interpreter

and testify in English to show that she could not speak English. Gongora was able

to testify that she had difficulty with English by speaking in Spanish and using an

interpreter, so she was still able to present her evidence and make her argument.

The district court didn’t abuse its discretion in excluding the demonstration.


      7.     Lynch claims that she was denied a fair trial because the district court

allowed the government to refer to co-defendants’ prior trials in impeaching her.

“[T]he trial court may permit cross-examination ‘as to all matters reasonably related
                                                                                     page 8
to the issues [the defendant] put in dispute by [her] testimony on direct.’” United

States v. Vasquez, 858 F.2d 1387, 1392 (9th Cir. 1988) (citation omitted). Lynch

testified that she first learned the Old Quest OID scheme was fraudulent when

Matthew Wilcox testified at her trial the week before. Thus, it was permissible for

the government to impeach Lynch on this point. The district court sustained

Lynch’s objections to the speculative aspects of the government’s questioning. But

it properly allowed the government to ask Lynch about the two other OID scheme

trials she watched and confirm that she did not know the OID scheme was

fraudulent until her trial, despite observing two other trials covering that exact

issue.


         8.   Ruiz claims the district court committed reversible error by instructing

the jury that if “you are convinced beyond a reasonable doubt that the defendant is

guilty, it is your duty to find the defendant guilty.” We have previously held that

this model jury instruction is proper. United States v. Gomez, 725 F.3d 1121, 1131

(9th Cir. 2013); United States v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006).


         9.   Gongora and Lynch claim that the district court erred by failing to

specifically define willfulness as an element of the conspiracy and false claims

charges, and by failing to explain that willful blindness cannot establish aiding and
                                                                                 page 9
abetting. The district court gave the jointly proposed and model jury instructions on

these charges. Assuming defendants did not waive the issue by proposing these

instructions, we review for plain error because defendants did not object below.

United States v. Olano, 507 U.S. 725, 731–35 (1993). There was no error in the

instructions. See 18 U.S.C. §§ 286, 287; United States v. Atalig, 502 F.3d 1063,

1067 (9th Cir. 2007); United States v. Jewell, 532 F.2d 697, 699–704 (9th Cir.

1976) (en banc). Further, defendants have not shown that any error would have

changed the outcome of the proceedings. Olano, 507 U.S. at 734–35.


      10.    Lynch and Ruiz claim that the cumulative effect of errors

at their trials requires that their convictions be reversed. Because they have not

shown any errors, reversal for cumulative error is not warranted.


      AFFIRMED.
