                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 10 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 15-10270
                                                      15-10429
              Plaintiff-Appellee,
                                                 D.C. No.
 v.                                              2:12-cr-01606-SRB-2

JOSEPH JOHN PLANY,
                                                 MEMORANDUM*
              Defendant-Appellant.



UNITED STATES OF AMERICA,                        Nos. 15-10275
                                                      15-10440
              Plaintiff-Appellee,
                                                 D.C. No.
 v.                                              2:12-cr-01606-SRB-1

PAXTON JEFFREY ANDERSON,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                       Argued and Submitted August 7, 2017
                               Pasadena, California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.

      1. Defendants Paxton Anderson and Joseph Plany appeal the district court’s

order denying their motion for judgment of acquittal or, alternatively, for a new

trial. Anderson challenges his conviction for Counts 1, 2, 4, 5, 8–10, 13, 24, 26,

27, and 30–32, and Plany challenges his conviction for Counts 4, 5, 9, 10, 13, 24,

26, 27, and 30–32. We review de novo a district court’s denial of a motion for

judgment of acquittal. United States v. Jinian, 725 F.3d 954, 959 (9th Cir. 2013).

We review a district court’s denial of a motion for a new trial for abuse of

discretion. United States v. French, 748 F.3d 922, 934 (9th Cir. 2014).

      On Count 1, involving Jason Woodward, the government’s evidence that

M&I Bank was the lender in question was: (1) Wil Daly’s testimony that Greg

Slater was a loan officer for M&I Bank; (2) Greg Sanchez’s testimony that Greg

Slater was “probably” the lender; and (3) testimony from Mike Blemaster that he

prepared a loan package for Woodward, and that he usually submitted loans around

this size to M&I Bank or TierOne. Viewing the evidence in the light most

favorable to the prosecution, the evidence was insufficient to allow any rational

juror to find, beyond a reasonable doubt, that M&I Bank was the lender for




                                          2
Count 1. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Rios,

449 F.3d 1009, 1011 (9th Cir. 2006).

      There was, however, sufficient evidence to allow reasonable jurors to find

that M&I Bank and TierOne were FDIC-insured institutions and were the lenders

on the remaining counts. The evidence consisted of certificates of proof of insured

status; testimony from Daly, Blemaster, and Sanchez; Tasha Henstein’s testimony

regarding draw requests to M&I Bank; copies of loan applications and draw

requests; and payment information.

      There was similarly sufficient evidence to allow jurors to conclude that the

falsified draw requests were material. Evidence, including Daly’s testimony,

established that forgery of the borrowers’ signatures was “capable of influencing[]

. . . the decision of the decisionmaking body to which [the misrepresentation] was

addressed.” See United States v. Lindsey, 850 F.3d 1009, 1013 (9th Cir. 2017)

(quoting Neder v. United States, 527 U.S. 1, 16 (1999)).

      Defendants failed to show that they are entitled to a judgment of acquittal or

a new trial based on prosecutorial misconduct. There is insufficient evidence that

the government presented false information at trial, intentionally or otherwise, or

that any misconduct by the government substantially prejudiced defendants. See




                                          3
United States v. Atcheson, 94 F.3d 1237, 1244 (9th Cir. 1996); United States v.

Kearns, 5 F.3d 1251, 1253–54 (9th Cir. 1993).

      Although the district court misstated the standard for motions for a new trial,

the remainder of the district court’s order establishes that it nonetheless applied the

correct standard for defendants’ weight-of-the-evidence and prosecutorial-

misconduct arguments. The district court reviewed the evidence in detail. It found

that “there [wa]s enough evidence that was admitted that connects M&I Bank to

the loans and that corroborates Mr. Daly’s testimony about M&I Bank’s

involvement with the loans.” It also considered Blemaster’s testimony that he

submitted a loan application for Marti Jo Anderson to TierOne Bank. The district

court also made an express finding that no prosecutorial misconduct occurred

during discovery. The district court thus properly carried out its role in ruling on a

motion for a new trial. See United States v. Rush, 749 F.2d 1369, 1372 (9th Cir.

1984); see also United States v. Alston, 974 F.2d 1206, 1211–12 (9th Cir. 1992)

(stating that district courts may grant new trials where “a serious miscarriage of

justice may have occurred” (quoting United States v. Lincoln, 630 F.2d 1313, 1319

(8th Cir. 1980)).

      2. The district court did not plainly err by failing to dismiss a sleeping juror.

See Puckett v. United States, 556 U.S. 129, 135 (2009) (discussing plain error


                                           4
review). The juror missed a minimal amount of testimony, and defendants were

not substantially prejudiced. See United States v. Klee, 494 F.2d 394, 396 (9th Cir.

1974) (“[N]ot every incident of juror misconduct requires a new trial. The test is

whether or not the misconduct has prejudiced the defendant to the extent that he

has not received a fair trial.” (citations omitted)).

       3. The district court’s failure to dismiss venire panelist 19 for cause did not

violate defendants’ Sixth Amendment rights. After the district court declined to

dismiss panelist 19, the panelist was eliminated through a peremptory strike. If the

trial court erroneously refuses to dismiss a juror for cause, and “the defendant

elects to cure such an error by exercising a peremptory challenge, and is

subsequently convicted by a jury on which no biased juror sat, he has not been

deprived of any rule-based or constitutional right.” United States v.

Martinez-Salazar, 528 U.S. 304, 307 (2000).

       4. The conspiracy count in the indictment was not duplicitous. Reviewing

the face of the indictment, we conclude that it is possible to “fairly read” it as

charging a single offense involving one overarching conspiracy. See United States

v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir. 1983), overruled on other grounds as

recognized in United States v. Frega, 179 F.3d 793, 803 (9th Cir. 1999).




                                             5
      5. The district court did not plainly err by failing to give a specific

unanimity instruction sua sponte. See United States v. Lapier, 796 F.3d 1090,

1096 (9th Cir. 2015). The district court gave a general unanimity instruction, see

United States v. Payseno, 782 F.2d 832, 835 (9th Cir. 1986) (“Normally, a general

instruction on the requirement of unanimity suffices to instruct the jury that they

must be unanimous on whatever specifications form the basis of the guilty

verdict.”), and the detailed verdict form eliminated any “‘genuine possibility of

jury confusion’ or a possibility ‘that a conviction may occur as the result of

different jurors concluding that the defendant committed different acts,’” Lapier,

796 F.3d at 1096 (quoting Payseno, 782 F.2d at 836).

      6. Defendants have waived any claim regarding a fatal variance between the

indictment and proof at trial, and we decline to address this argument. See Brown

v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1148 (9th Cir. 2016).

      7. The district court did not plainly err by failing to reduce Plany’s sentence.

Plany did not request a minor role adjustment at sentencing, and his entitlement to

such an adjustment is not plain. See United States v. Hammons, 558 F.3d 1100,

1103 (9th Cir. 2009). The record also establishes that the district court considered

the relevant factors under U.S.S.G. § 3B1.2 and justifiably concluded that Plany




                                           6
was an average participant. See United States v. Carty, 520 F.3d 984, 991–92 (9th

Cir. 2008).

      8. The district court did not err in its restitution order. See United States v.

Gossi, 608 F.3d 574, 577–78 (9th Cir. 2010). Defendants’ convictions, based on a

fraudulent scheme, supported restitution for related conduct, United States v.

Lawrence, 189 F.3d 838, 846 (9th Cir. 1999), and the evidence supported the

district court’s finding that the defendants’ conduct caused the losses at issue, see

id.

      Defendant Anderson’s conviction is REVERSED as to Count 1.

Defendants’ convictions on the remaining counts are AFFIRMED. Defendants’

sentences are also AFFIRMED.




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