                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 12 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50229
                                                       18-50373
                Plaintiff-Appellee,
                                                D.C. No.
 v.                                             2:16-cr-00538-RGK-4

JAMIE MATSUBA, AKA Jamie Michaels,
AKA Jamie Yukari,                               MEMORANDUM*

                Defendant-Appellant.


UNITED STATES OF AMERICA,                       No.    18-50232

                Plaintiff-Appellee,             D.C. No.
                                                2:16-cr-00538-RGK-5
 v.

TAKAHARO THOMAS MATSUBA,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                        Argued and Submitted June 4, 2020
                              Pasadena, California



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: OWENS and BUMATAY, Circuit Judges, and MOLLOY,** District
Judge.

      Following a seven-day jury trial, Jamie Matsuba and Takaharo Thomas

Matsuba were convicted of mortgage fraud and conspiracy to commit mortgage

fraud, wire fraud, and identity theft based on a multi-million-dollar foreclosure

rescue scheme targeting distressed homeowners in the Los Angeles area from 2008

to 2015. They were sentenced, by application of an 18-level loss enhancement, to

135 months and 168 months, respectively. The defendants allege error at every

stage of the proceeding. We have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742. We affirm the convictions but reverse and remand for

resentencing.

      1. Even assuming without deciding that jurors K.W. and M.M. should have

been excused for cause, see United States v. Kechedzian, 902 F.3d 1023, 1028−30

(9th Cir. 2018), a new trial is not warranted because the defendants were tried by

an impartial jury that did not contain either contested juror, United States v.

Martinez-Salazar, 528 U.S. 304, 315−17 (2000); Ross v. Oklahoma, 487 U.S. 81,

88, 91 (1988). This is not the situation where “the trial court deliberately

misapplied the law in order to force the defendants to use a peremptory challenge




      **
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.

                                           2                                      18-50229
to correct the court’s error.” Martinez-Salazar, 528 U.S. at 316. Nor did the

defendants request any additional peremptory challenges for selection of the petit

jury, as Federal Rule of Criminal Procedure 24(b) expressly permits in a multi-

defendant case.

      2. The defendants’ due process rights were not violated by the government’s

late disclosure of emails between a homeowner witness and an employee of the

Matsubas that the homeowner had attributed to Thomas. See Brady v. Maryland,

373 U.S. 83, 87 (1963). While it is undisputed the disclosure should have been

made earlier, the emails were provided before the close of evidence and the

defense was able to recall the witness and cross-examine her on their contents.

The emails were therefore disclosed “at a time when the disclosure remain[ed] of

value.” United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988); see

United States v. Alvarez, 86 F.3d 901, 905 (9th Cir. 1996) (no Brady violation

where defendant could cross-examine witness about late-disclosed information);

United States v. Vgeri, 51 F.3d 876, 880 (9th Cir. 1995) (same); United States v.

Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (same).

      3. Nor did the witness’s incorrect recollection violate Napue v. Illinois, 360

U.S. 264, 269 (1959). The defendants fail to show that the witness “knew h[er]

testimony was inaccurate at the time [s]he presented it, rather than [her]

recollection merely being mistaken, inaccurate or rebuttable.” Henry v. Ryan, 720


                                          3                                   18-50229
F.3d 1073, 1084 (9th Cir. 2013). While the government had an obligation to

provide the emails and “correct the record to reflect the true facts,” Hayes v.

Brown, 399 F.3d 972, 984 (9th Cir. 2005), the witness explained, even after being

recalled to the stand, why she thought she was communicating with Thomas.

      4. The district court failed to expressly resolve the parties’ loss versus gain

dispute. Fed. R. Crim. P. 32(i)(3)(B); see USSG §2B1.1 cmt. n.3(B). We have

“mandated strict compliance with Rule 32, explaining that the rulings must be

express or explicit.” United States v. Doe, 705 F.3d 1134, 1153 (9th Cir. 2013)

(internal quotation marks and citations omitted). “[I]t is well settled law in this

circuit that when the district court fails to make the required Rule 32 findings or

determinations at the time of sentencing, we must vacate the sentence and remand

for resentencing.” United States v. Job, 871 F.3d 852, 870 (9th Cir. 2017) (internal

quotation marks and citations omitted). In light of reversal and remand for

resentencing on this ground, we do not address the parties’ arguments regarding

the adequacy of the district court’s determination of the final loss amount.

Nevertheless, the district court should consider the parties’ concerns on remand.

      5. Even though the district court cited the incorrect statutory framework in

its restitution order, the defendants fail to show this error affected their substantial

rights or “seriously affect[ed] the fairness, integrity or public reputation of the

judicial proceedings.” United States v. Fu Sheng Kuo, 620 F.3d 1158, 1164 (9th


                                            4                                     18-50229
Cir. 2010) (internal quotation marks and citations omitted). However, the district

court abused its discretion by not offsetting the amounts the Matsubas paid towards

maintenance and homeowners’ association fees. See United States v. Kaplan, 839

F.3d 795, 802 (9th Cir. 2016) (“[I]t would be an abuse of discretion for a district

court to issue a restitution award that makes a victim more than whole, such as by

awarding a windfall.”). Accordingly, we also remand for reconsideration of the

restitution award.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




                                          5                                    18-50229
