                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       APR 16 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10151

                Plaintiff-Appellee,             D.C. No.
                                                5:13-cr-00736-EJD-1
 v.

SANJIV KAKKAR,                                  MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward J. Davila, District Judge, Presiding

                      Argued and Submitted March 13, 2018
                           San Francisco, California

Before: PAEZ and IKUTA, Circuit Judges, and VITALIANO,** District Judge.

      Defendant-appellant Sanjiv Kakkar appeals his conviction and sentence

following a jury trial on one count of making false statements to a federally insured

bank to secure a loan, in violation of 18 U.S.C. § 1014, and various counts of wire

fraud, in violation of 18 U.S.C. § 1343. Kakkar argues here that certain highly


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
prejudicial evidence was erroneously admitted by the district court, that the

evidence was insufficient to support the jury’s verdict, that the district court

constructively amended the indictment and that the district court improperly

computed economic loss both for purposes of determining the applicable

Sentencing Guidelines range and for the award of restitution. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

      The linchpin for Kakkar’s challenge to his conviction was the district court’s

admission of his 2007 and 2008 fraudulent income tax returns into evidence over

his hearsay objection, a ruling for which much fume and fury was reserved at trial

and in the briefing on this appeal. We review the district court’s evidentiary

determinations for abuse of discretion, United States v. Blitz, 151 F.3d 1002, 1007

(9th Cir. 1998), and we agree that the tax returns were properly admitted. The

foundational requirements for admission of the tax returns as business records were

met when the bank’s custodian of records testified that they were maintained in the

bank’s loan file in the regular course of business, as the bank relied on such

records and had a substantial interest in their accuracy. See MRT Constr. Inc. v.

Hardrives, Inc., 158 F.3d 478, 483 (9th Cir. 1998). Any other objection to the

receipt of the tax returns into evidence went merely to their evidentiary weight.

We conclude, moreover, that there was ample evidence to allow a reasonable juror

to find beyond a reasonable doubt that Kakkar had submitted the false tax returns


                                           2
to the bank in order to secure the subject loan. See United States v. Bennett, 621

F.3d 1131, 1135 (9th Cir. 2010); United States v. Foster, 711 F.2d 871, 875 (9th

Cir. 1983).

      The absence of direct proof of precisely when the bank received the

fraudulent tax documents from Kakkar, however, provided backbone for Kakkar’s

argument that the district court constructively amended the indictment in

contravention of the Fifth Amendment, which is a claim that we review de novo.

United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir. 2006). The indictment

alleged that Kakkar had engaged in fraud “to secure the loan,” which Kakkar

contends should be read as “to obtain the loan.” On the contrary, the indictment

charges the making of a false representation “in connection with” a bank loan. As

a consequence, since we conclude that there is sufficient evidence to support a

finding that Kakkar submitted the tax returns to the bank in connection with the

loan, the fact that one or both tax documents may have been submitted to the bank

after Kakkar had obtained the loan does not amount to a constructive amendment

of the indictment. Especially given the government’s notice before trial that it

would pursue this theory of prosecution, this interpretation of the language of the

indictment was, at most, a non-prejudicial variance, rendering any error harmless.

See United States v. Von Stoll, 726 F.2d 584, 586–87 (9th Cir. 1984).




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      Next, Kakkar argues that there was insufficient evidence to support his

conviction on the wire frauds charged in the indictment by disputing whether the

bank or a middle man transfer agency (Dixieline) was actually defrauded of funds.

Contrary to Kakkar’s assertions, we conclude that there is sufficient evidence that

not only were the fraudulent invoices, which Kakkar initially sent to Dixieline,

subsequently submitted to the bank, but that the bank acted on that false

information in approving Dixieline’s disbursement of funds to Kakkar. United

States v. Ali, 620 F.3d 1062, 1070 (9th Cir. 2010). Therefore, the evidence

supports the conclusion that “any rational trier of fact could have found the

essential elements” of wire fraud beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979).

      Finally, we review for clear error Kakkar’s challenges to the district court’s

calculation of loss for purposes of determining the applicable Sentencing

Guidelines range and restitution amount. United States v. Zolp, 479 F.3d 715, 718

(9th Cir. 2007); United States v. Pizzichiello, 272 F.3d 1232, 1240 (9th Cir. 2001).

While the evidentiary record could have been more robust, there was no clear error

either in the district court’s computation of the Sentencing Guidelines range or its

order of restitution. The district court did not clearly err in determining that

Kakkar’s fraudulent behavior caused the loss of the entire amount of the loan less

loan repayments because Kakkar’s failure to provide accurate financial records


                                           4
prevented the bank from foreclosing while the property’s value could have covered

the loan amount. Nor was it clear error for the district court to conclude that the

bank did not retain any insurance proceeds. Finally, the district court did not

clearly err in using the credit bid in its calculation of loss because there is no

evidence in the record that the Brookdale Inn was more valuable than the credit

bid.

       AFFIRMED.




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