                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 07 2010

                                                                       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. 07-30360

             Plaintiff - Appellee,               D.C. No. CR-05-60074-MRH

  v.
                                                 MEMORANDUM *
RICHARD JAMES DOMPIER,

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                     Argued and Submitted December 8, 2009
                                Portland, Oregon

Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.

       Richard James Dompier appeals his conviction and sentence for mail fraud

in violation of 18 U.S.C. § 1341, interstate transportation of money taken by fraud

in violation of 18 U.S.C. § 2314, money laundering in violation of 18 U.S.C. §




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1957, and failing to file corporate tax returns in violation of 26 U.S.C. § 7203. We

affirm.

1.    Motion for Substitution of Counsel

      We reject Dompier’s claim that the district court abused its discretion in

denying Dompier’s motion for substitution of counsel.1 The district court’s

decision to deny a substitution motion is reviewed for abuse of discretion. Untied

States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir. 2009). “Under our

established rule, we consider: (1) the timeliness of the motion; (2) the adequacy of

the district court’s inquiry [into the asserted conflict between the defendant and his

counsel]; and (3) whether the asserted conflict was so great as to result in a

complete breakdown in communication and a consequent inability to present a

defense.” Id. (citing United States v. Prime, 431 F.3d 1147, 1154 (9th Cir. 2005));

see United States v. Adelzo-Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001) (“Before

ruling on a motion to substitute counsel . . . , a district court must conduct such




      1
       Dompier also claims that the district court erred in not appointing new
counsel to argue his substitution motion. Separate counsel is not warranted, for
purposes of the substitution motion, unless current counsel takes an adversarial and
antagonistic stance regarding the motion. See Stenson v. Lambert, 504 F.3d 873,
888 (9th Cir. 2007) (citing United States v. Adelzo-Gonzalez, 268 F.3d 772, 779-80
(9th Cir. 2001)). Dompier’s attorney did not take an adversarial or antagonistic
stance regarding the motion.

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necessary inquiry as might ease the defendant’s dissatisfaction, distrust, and

concern.”) (internal quotation marks and citation omitted).

      Although Dompier moved for substitution of counsel approximately five

weeks in advance of trial, the trial was scheduled to last two weeks, the case

involved significant discovery, and Dompier’s attorney had already spent over 500

hours representing Dompier. See Mendez-Sanchez, 563 F.3d at 942 (denying a

substitution motion filed more than two weeks before trial where the case involved

significant discovery and the defendant’s attorney was prepared for trial). In

addition, the record makes clear that both the magistrate judge and the district

judge conducted adequate inquiries into the asserted conflict by (1) allowing

Dompier to express his concerns at length in court; (2) questioning Dompier’s

attorney about the extent of the conflict; (3) encouraging Dompier to contact his

attorney more frequently if he was unsatisfied with their amount of

communication; and (4) attempting to ease Dompier’s concerns by explaining to

him that his concerns were not uncommon. See Prime, 431 F.3d at 1155

(“Because [the defendant] was given the opportunity to express whatever concerns

he had, and the court inquired as to [the defendant’s attorney’s] commitment to the

case and his perspective on the degree of communication, we find that the hearing

was adequate.”). Finally, the asserted conflict did not result in a complete


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breakdown in communication or a consequent inability to present a defense, as

Dompier and his attorney were in contact with each other, albeit not to the extent

Dompier wanted, and Dompier’s attorney averred to the district court that he was

prepared to competently represent Dompier at trial. Compare Mendez-Sanchez,

563 F.3d at 943 (affirming the denial of a substitution motion where there was

“some level of conflict,” but not “an ‘extensive, irreconcilable conflict’ between

[the defendant] and his appointed counsel”) (quoting United States v. Smith, 282

F.3d 758, 763 (9th Cir. 2002)) with Adelzo-Gonzalez, 268 F.3d at 778 (reversing

the denial of a substitution motion where the defendant stated that his “appointed

counsel did not pay attention to him . . . and . . . had threatened ‘to sink [him] for

105 years so that [he] wouldn’t be able to see [his] wife and children’”). The

district court thus did not abuse its discretion in denying Dompier’s motion for

substitution of counsel.

2.    Jury Instructions

      We reject Dompier’s claim that the district court plainly erred in failing to

instruct the jury that it had to find, as to the money laundering counts, that the

money sent by Dompier to Simon Hill was from profits, rather than receipts, of his

fraud. “Where, as here, the defendant failed to timely object to jury instructions,

we review under our familiar plain error standard.” United States v. Crowe, 563


                                          -4-
F.3d 969, 972-73 (9th Cir. 2009) (internal quotation marks and citation omitted).

“‘[P]roceeds’ means ‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present

a ‘merger’ problem of the kind that troubled the plurality and concurrence in

[United States v. Santos, 128 S. Ct. 2020 (2008)].” United States v. Van Alstyne,

584 F.3d 803, 814 (9th Cir. 2009).

      Viewing proceeds as receipts in this case does not present a merger problem,

as the money laundering counts charged criminal conduct—sending commission

checks to a United Kingdom representative—distinct from the mail fraud counts,

which concerned only the United States sales and only checks from investors. See

id. at 816 (affirming the defendant’s money laundering conviction where “the mail

fraud ‘scheme’ and money laundering elements [we]re distinct with regard to [the]

money laundering count”); id. at 815 (“[O]ur analysis of the ‘merger’ problem in

the mail fraud context must focus on the concrete details of the particular ‘scheme

to defraud,’ rather than on whether mail fraud generally requires payments of the

kind implicated in Santos.”).

      In any event, at trial, the Government traced the money sent by Dompier to

Simon Hill as commission to profits derived from payments made by the scheme’s

investors in the United Kingdom. Accordingly, there was sufficient evidence

presented at trial for the jury to have found beyond a reasonable doubt that the


                                        -5-
money Dompier sent to Simon Hill represented payments from the fraudulent

scheme’s profits, as opposed to its receipts. See United States v. Olano, 507 U.S.

725, 734 (1993) (“[I]n most cases, . . . the error must have been prejudicial: It must

have affected the outcome of the district court proceedings.”) (citations omitted).

3.    Intent to Defraud

      We reject Dompier’s claim that there was insufficient evidence of his intent

to defraud. “We review de novo whether sufficient evidence exists to support a

conviction where the defendant moves for acquittal at the close of the

government’s evidence.” United States v. Selby, 557 F.3d 968, 972 (9th Cir. 2009)

(citation omitted). “There is sufficient evidence to support a conviction if, viewing

the evidence in the light most favorable to the prosecution and drawing all

reasonable inferences, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Bazuaye, 240

F.3d 861, 863 (9th Cir. 2001). At trial the Government presented evidence that (1)

Dompier operated a classic pyramid scheme; (2) the scheme’s earnings promises

were patently false; (3) Dompier had previously participated in a similar pyramid

scheme; (4) he continued to accept money from investors more than two years after

he learned he was operating a pyramid scheme; (5) he continuously reassured

investors that they would receive their promised returns, despite knowing they


                                         -6-
would not receive them; and (6) he repeatedly misrepresented to investors why he

could not pay them their promised returns. That evidence is sufficient to allow a

reasonable juror to have found beyond a reasonable doubt that Dompier possessed

an intent to defraud.

4.    Motion for Downward Departure

      Dompier’s contention that the district court failed to rule on his motion for a

downward departure has no merit. We review the district court’s sentencing

decisions for abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th

Cir. 2008) (en banc) (citation omitted). Dompier moved for a downward departure

pursuant to Application Note 19(c) to Sentencing Guideline § 2B1.1, which

authorizes a downward departure in “cases in which the offense level . . .

substantially overstates the seriousness of the offense.” U.S.S.G. § 2B1.1 cmt.

n.19(c). At the sentencing hearing, the district court stated that it had given

considerable thought to Dompier’s motion. The court also asked both parties to

specifically address the motion in their remarks to the court. The court then

effectively granted the motion for a downward departure, imposing a sentence 48

months below the low end of the Guidelines range of 168-210 months. The court

did not abuse its discretion by not explicitly stating that it was granting the motion.

      AFFIRMED.


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