                                                                            FILED
                              NOT FOR PUBLICATION                           OCT 16 2013

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



                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 12-10271

                 Plaintiff - Appellee,             D.C. No. 3:11-cr-00113-RS-1

     v.
                                                   MEMORANDUM*
SHAREE MARTELL HALL, AKA
Sharee Martel Hall, AKA Sharee Martels
Hall,

                 Defendant - Appellant.


                      Appeal from the United States District Court
                         for the Northern District of California
                       Richard Seeborg, District Judge, Presiding

                         Argued and Submitted October 9, 2013
                               San Francisco, California

Before: D.W. NELSON, M. SMITH, and IKUTA, Circuit Judges.

          Sharee Hall (Hall) appeals her conviction on one count of wire fraud, 18

U.S.C. § 1343, and one count of money laundering, 18 U.S.C. § 1957. We have

jurisdiction under 28 U.S.C. § 1291 and we affirm.



 *
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        Hall advances four challenges to her convictions: (1) that there was

insufficient evidence that the funds involved in her money laundering conviction

were the “proceeds” of specified criminal activity; (2) that there was insufficient

evidence to convict her of wire fraud because the government only presented

circumstantial evidence that she was directing the transfers; (3) that the district

court constructively amended the Indictment by instructing the jury on vicarious

liability; and finally (4) that the district court erred in its response to the jury’s

question regarding the scope of vicarious liability. We deal with each challenge in

turn.

I. The Money Laundering Conviction

        Hall argues that she could not have laundered the “proceeds” of the wire

fraud because she was acquitted of the two charged wire fraud counts that would

have made funds available at the time she purchased the $102,500 cashier’s check

that underlies the money laundering count. In order to obtain a conviction under §

1957, however, the government need only establish that: (1) the defendant

knowingly engaged in a monetary transaction; (2) she knew the transaction

involved criminal property; (3) the property’s value exceeded $10,000; and (4) the

property was derived from a specified unlawful activity. See United States v.

Messer, 197 F.3d 330, 341 (9th Cir. 1999). There was ample evidence that Hall
knew that the funds involved in her purchase of the $102,500 cashier’s check were

the proceeds of illegal activity. In fact, the jury concluded that Hall had sufficient

knowledge of the wire fraud scheme to convict her of wire fraud based on

transactions that occurred on January 20, 2009, the day before Hall purchased the

cashier’s check. There is also ample evidence to show that the funds Hall used to

purchase the $102,500 cashier’s check were in fact the result of wire fraud. On

these facts and others, a rational trier of fact could find that Hall knowingly

engaged in a monetary transaction involving the proceeds of illegal activity.

      Hall also argues that she cannot be convicted of money laundering because

the government charged that “[i]t was further a part of the scheme to defraud that

HALL used the money fraudulently transferred from [ONE Foundation’s account]

for her own purposes, including purchasing more than $100,000 worth of cashiers

checks” as an element of the indicted wire fraud counts. She contends that her

withdrawal of funds is thus an essential element of the wire fraud scheme and

consequently cannot constitute a financial transaction involving the proceeds of

independent illegal activity.

      Where a scheme is ongoing, funds constitute “proceeds” of prior separate

activity where they are used outside of the scheme that generated the funds or are

not essential to carrying out the scheme’s objectives. Compare United States v.

Santos, 553 U.S. 507, 516-517 (2008) (holding that payouts to lottery winners
were not proceeds because they were essential to continuing the scheme), with

United States v. Bush, 626 F.3d 527, 538 (9th Cir. 2010) (upholding money

laundering convictions because they were part of a Ponzi scheme but were not

“central to carrying out the scheme’s objectives”). In this case Hall’s purchase of

cashier’s checks was not a central component of the wire fraud scheme. The fact

that the Indictment charged Hall with “us[ing] the money for her own purposes,

including purchasing more than $100,000 worth of cashiers checks,” does not

transform that act into an essential part of the scheme.

II. The Wire Fraud Conviction

      Hall claims that the jury lacked sufficient evidence to convict her of wire

fraud. She argues that “there was no evidence adduced at trial that HALL herself

transmitted or caused to be transmitted the [transactions]” because Hall gave her

account information to Candice Ward.

      Circumstantial evidence that a defendant participated in a fraudulent scheme

can support a conviction for wire fraud. See United States v. Mullins, 992 F.2d

1472, 1475-1477 (9th Cir. 1993) (affirming a wire fraud conviction where a trio of

travel agents had manipulated an airline reservation system despite the fact that

other employees could have accessed the accounts because of the circumstantial

evidence to supporting conviction). Here, the government introduced significant

circumstantial evidence that suggested that Hall was either directing or aware of
the fraudulent transactions. For example, Paypal sent an email to Hall’s personal

email address reflecting each of the transfers. On these facts and others, a rational

trier of fact could find that Hall committed wire fraud.

III. Constructive Amendment of the Indictment

      Hall alleges that the vicarious liability instruction given to the jury amounts

to a constructive amendment of the Indictment because the Indictment does not

mention co-conspirators.

      The plain language of the Indictment does not limit the “scheme to defraud”

to a single defendant.1 Further, “Lothian and its progeny establish the principle . . .

that vicarious liability for substantive counts of mail or wire fraud does not require

that the indictment charge conspiracy.” United States v. Stapleton, 293 F.3d 1111,

1119 (9th Cir. 2002) (alterations omitted). Accordingly, the vicarious liability

instruction did not present “a complex of facts [at trial] distinctly different from

those set forth in the charging instrument,” or a situation in which “the crime

charged [in the indictment] was substantially altered at trial, so that it was

impossible to know whether the grand jury would have indicted for the crime

actually proved.” United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984).

IV. Response to Jury Question Two

      1
      The Indictment charges Hall with “engag[ing] in a scheme to defraud ONE
Foundation and HSBC Bank USA by misappropriating money that belonged to
ONE Foundation for her own benefit.”
      The District Court did not commit plain error by responding to Jury

Question Two by referring the Jury to the previously issued Jury Instructions.

United States v. Preston, 706 F.3d 1106, 1122 (9th Cir. 2013). The Jury Question

was unclear. Accordingly, either a “yes” or a “no” response would have presented

an equal if not greater chance of being “misleading, unresponsive, or legally

incorrect.” United States v. Anekwu, 695 F.3d 986, 986 (9th Cir. 2012).

      AFFIRMED.
