                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 21 2010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. 09-10343

              Plaintiff - Appellee,               D.C. No. 3:08-cr-00066-BES-
                                                  RAM-1
  v.

DARIN JEROME FRENCH,                              MEMORANDUM *

              Defendant - Appellant.




                    Appeal from the United States District Court
                             for the District of Nevada
                    Brian E. Sandoval, District Judge, Presiding

                         Argued and Submitted May 10, 2010
                              San Francisco, California

Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.

       Defendant-Appellant Darin French appeals his conviction and sentence. As

the facts and procedural history are familiar to the parties, we recite them here only

as necessary to explain our decision. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. Sufficiency of the Evidence

      A jury found French guilty on thirty-six counts of violating 18 U.S.C.

§ 1343 (wire fraud) for his participation in a scheme to defraud Maytag-Whirpool

by electronically submitting false claims for payment of repair services on

warrantied Maytag appliances. French primarily argues that the evidence was

insufficient to prove that he was the culprit in the admittedly fraudulent scheme,

and that, consequently, the district judge erred in denying his motion for a

judgment of acquittal under Federal Rule of Criminal Procedure 29.

      However, undisputed evidence showed that French was the owner of the

appliance repair business involved in submitting the false claims, and was in

control of the bank account into which the fraudulently obtained funds were

directly deposited. Also, undisputed evidence involving his blatantly incredible

and dishonest responses to Maytag’s claims investigator strongly showed his

consciousness of guilt. Considering the evidence as a whole, and construing it in

the light most favorable to the prosecution, a rational trier of fact could have

concluded beyond any reasonable doubt that French was personally involved with

and aware of the fraud scheme and had the specific intent to defraud. See Jackson

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

2. Motion for Reconsideration


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         French filed a motion for reconsideration of the district court’s order

denying his motion for new trial. French’s motion was timely because he brought

it within the time to appeal the denial of his motion for new trial. See United States

v. Healy, 376 U.S. 75, 78 (1964); United States v. Lefler, 880 F.2d 233, 234 (9th

Cir. 1989) (“[F]or a motion for reconsideration to extend the time for appeal [it]

must be filed within the period during which an appeal could have been noticed

from the original order . . . .”). The district court concluded that French’s motion

was based entirely on evidence that French either knew of during the trial or could

have discovered with due diligence. Such evidence is not a proper basis for a

motion for reconsideration. See Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255,

1262–63 (9th Cir. 1993). The district court therefore did not abuse its discretion in

denying the motion.

3. Sentencing

         French next argues that the district court should have calculated the amount

of the loss for sentencing purposes according to the amount he gained from the

fraud.

         However, the sentencing court is required to base the defendant’s sentence

on an estimate of loss the defendant caused or intended to cause to the victim.

U.S.S.G. § 2B1.1, cmt. 3. The defendant’s gain is the appropriate measure only


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where the loss is not ascertainable. Id. Here, French’s crime involved transfers of

known sums of money into French’s company’s bank account. The amount lost to

Maytag is therefore readily determinable and is the appropriate measure of loss.

      Further, the district court’s adoption of the $353,000 figure as the amount of

the loss was not clearly erroneous, as it was the figure best supported by the

evidence. See United States v. Showalter, 569 F.3d 1150, 1159–61 (9th Cir. 2009).

4. Recusal

      French lastly argues that the district judge, Judge Brian Sandoval, should

have recused himself. Judge Sandoval had previously served as the Nevada

Attorney General. During the time of his tenure as the Nevada Attorney General,

that office investigated French in connection with another fraud case.

      Judge Sandoval did not abuse his discretion in declining French’s request for

recusal. This case was investigated and prosecuted well after Judge Sandoval was

appointed to the bench, so Judge Sandoval did not participate in, or have

knowledge of, this case, and no such participation and knowledge can be imputed

to him. He was therefore not required to recuse himself under 28 U.S.C.

§ 455(b)(3). Cf. United States v. Arnpriester, 37 F.3d 466, 467 (9th Cir. 1994)

(requiring recusal of former United States Attorney from presiding over a case his

office prosecuted).


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      Further, Judge Sandoval was not required to recuse himself under § 455(a)

because a reasonable person knowing all the facts would not have reason to

question his impartiality. Judge Sandoval’s choice to recuse himself in an

unrelated fraud case because of implied bias and concerns about jury perceptions

does not necessarily carry over to this case simply because French is a defendant in

both cases. See United States v. Silver, 245 F.3d 1075, 1080 (9th Cir. 2001)

(holding that recusal was not required where district judge was linked to an

investigation of the same defendant for factually and temporally unrelated crimes).

Under the circumstances, Judge Sandoval’s decisions not to order a new trial and

not to recuse himself from sentencing were not abuses of discretion.

      The judgment and sentence are AFFIRMED.




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