NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10227
Plaintiff-Appellee, D.C. No. 4:18-cr-02216-RCC-LCK-3 v.
DAVID ODEAN MCINTOSH, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding
Argued and submitted February 3, 2025** Phoenix, Arizona
Before: CLIFTON, BYBEE, and BADE, Circuit Judges.
Defendant-Appellant David Odean McIntosh was tried and convicted of
(1) conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349;
(2) six counts of wire fraud in violation of 18 U.S.C. § 1343; (3) two counts of mail
fraud in violation of 18 U.S.C. § 1341; and (4) one count of conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h). His convictions are based on
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. his participation in a conspiracy to defraud people through a lottery scam. McIntosh
argues both that the district court erred by denying his motion for judgment of
acquittal under Federal Rule of Criminal Procedure 29, and in imposing his sentence.
He also alleges instructional errors. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. McIntosh argues that the district court erred by denying his Rule 29
motion because the evidence was insufficient to support his convictions. We review
the denial de novo and apply the test for sufficiency of the evidence. United States
v. Gonzalez-Diaz, 630 F.3d 1239, 1242 (9th Cir. 2011); see United States v. Door,
996 F.3d 606, 616 (9th Cir. 2021). “If, after viewing the evidence in a light most
favorable to the prosecution, this court finds that any rational trier of fact could find
the essential elements of the charged crime beyond a reasonable doubt, then the
evidence is sufficient. United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010)
(en banc).”
Sufficient evidence supports McIntosh’s convictions for conspiracy to
commit mail and wire fraud. See 18 U.S.C. § 1349 (attempt and conspiracy), § 1341
(mail fraud), and § 1343 (wire fraud). McIntosh contends that there is no direct
evidence of an agreement among the co-conspirators. Direct proof of an agreement
is not required, however, when there is circumstantial evidence from which the jury
can infer an agreement. See United States v. Jaimez, 45 F.4th 1118, 1127 (9th Cir.
2 2022) (concluding there was sufficient evidence of a conspiracy to commit money
laundering even without an explicit agreement). The record includes circumstantial
evidence, including the testimony of a cooperating witness, from which a jury could
infer an agreement to accomplish an illegal objective. McIntosh argues that the
cooperating witness was not credible. The jury, not this court, weighs witness
credibility, Musacchio v. United States, 577 U.S. 237, 243 (2016), and “the
uncorroborated testimony of a single witness may be sufficient to sustain a
conviction,” United States v. Katakis, 800 F.3d 1017, 1028 (9th Cir. 2015) (citation
and quotation omitted).
There is ample evidence other than the cooperating witness’s testimony from
which a rational factfinder could find beyond a reasonable doubt that McIntosh
committed the elements of conspiracy to commit mail and wire fraud, as charged in
count 1, and the elements of the substantive offenses of mail and wire fraud, as
charged in counts 2 through 9. For example, McIntosh admitted that he obtained
and distributed lead lists of elderly targets, and that he knew the co-conspirators.
The evidence connected him to email accounts used in the scam (e.g., Workaholic
and BlacksHewitt), and he signed for deliveries of packages mailed to him by victim
N.K. The email that was sent to victim L.G. was forwarded to the Workaholic email
“almost immediately” after it was sent to L.G., and the subject line of the forwarded
email indicated that it was related to the scam. Thus, there is sufficient evidence to
3 support McIntosh’s convictions on counts 1 through 9.
Finally, viewed favorably to the prosecution, the evidence, including
Malcolm’s testimony describing how the co-conspirators moved money to Jamaica
and victim L.R.’s testimony that she received unsolicited checks from “sponsor[s]”
and was told to cash them at different banks and to send that money to pay the
“taxes” she owed on her winnings is sufficient to support McIntosh’s conviction for
conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h), as
charged in count 10. Jaimez, 45 F.4th at 1124 (discussing the elements of conspiracy
to commit money laundering); see also United States v. Singh, 995 F.3d 1069, 1075
(9th Cir. 2021) (discussing concealing ownership). McIntosh’s reliance on United
States v. Wilkes, 662 F.3d 524 (9th Cir. 2011), to support his merger argument is
misplaced. In Wilkes, we recognized that to obtain a conviction for the substantive
offense of money laundering, the “[t]ransactions that created the criminally-derived
proceeds must be distinct from the money-laundering transaction.” Id. at 545
(citation and quotation omitted). McIntosh, however, was convicted of conspiracy
to commit money laundering, and we have held that “[t]he commission of the
substantive offense and the conspiracy to commit it are two separate and distinct
offenses, and a conviction on the substantive count does not merge the conspiracy
count.” Baker v. United States, 393 F.2d 604, 610 (9th Cir. 1968) (citation omitted).
4 2. McIntosh argues the district court committed plain error when it
instructed the jury that, for purposes of wire and mail fraud, McIntosh must have
acted with “the intent to defraud, that is[,] the intent to deceive or cheat.” We review
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10227
Plaintiff-Appellee, D.C. No. 4:18-cr-02216-RCC-LCK-3 v.
DAVID ODEAN MCINTOSH, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding
Argued and submitted February 3, 2025** Phoenix, Arizona
Before: CLIFTON, BYBEE, and BADE, Circuit Judges.
Defendant-Appellant David Odean McIntosh was tried and convicted of
(1) conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349;
(2) six counts of wire fraud in violation of 18 U.S.C. § 1343; (3) two counts of mail
fraud in violation of 18 U.S.C. § 1341; and (4) one count of conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h). His convictions are based on
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. his participation in a conspiracy to defraud people through a lottery scam. McIntosh
argues both that the district court erred by denying his motion for judgment of
acquittal under Federal Rule of Criminal Procedure 29, and in imposing his sentence.
He also alleges instructional errors. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. McIntosh argues that the district court erred by denying his Rule 29
motion because the evidence was insufficient to support his convictions. We review
the denial de novo and apply the test for sufficiency of the evidence. United States
v. Gonzalez-Diaz, 630 F.3d 1239, 1242 (9th Cir. 2011); see United States v. Door,
996 F.3d 606, 616 (9th Cir. 2021). “If, after viewing the evidence in a light most
favorable to the prosecution, this court finds that any rational trier of fact could find
the essential elements of the charged crime beyond a reasonable doubt, then the
evidence is sufficient. United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010)
(en banc).”
Sufficient evidence supports McIntosh’s convictions for conspiracy to
commit mail and wire fraud. See 18 U.S.C. § 1349 (attempt and conspiracy), § 1341
(mail fraud), and § 1343 (wire fraud). McIntosh contends that there is no direct
evidence of an agreement among the co-conspirators. Direct proof of an agreement
is not required, however, when there is circumstantial evidence from which the jury
can infer an agreement. See United States v. Jaimez, 45 F.4th 1118, 1127 (9th Cir.
2 2022) (concluding there was sufficient evidence of a conspiracy to commit money
laundering even without an explicit agreement). The record includes circumstantial
evidence, including the testimony of a cooperating witness, from which a jury could
infer an agreement to accomplish an illegal objective. McIntosh argues that the
cooperating witness was not credible. The jury, not this court, weighs witness
credibility, Musacchio v. United States, 577 U.S. 237, 243 (2016), and “the
uncorroborated testimony of a single witness may be sufficient to sustain a
conviction,” United States v. Katakis, 800 F.3d 1017, 1028 (9th Cir. 2015) (citation
and quotation omitted).
There is ample evidence other than the cooperating witness’s testimony from
which a rational factfinder could find beyond a reasonable doubt that McIntosh
committed the elements of conspiracy to commit mail and wire fraud, as charged in
count 1, and the elements of the substantive offenses of mail and wire fraud, as
charged in counts 2 through 9. For example, McIntosh admitted that he obtained
and distributed lead lists of elderly targets, and that he knew the co-conspirators.
The evidence connected him to email accounts used in the scam (e.g., Workaholic
and BlacksHewitt), and he signed for deliveries of packages mailed to him by victim
N.K. The email that was sent to victim L.G. was forwarded to the Workaholic email
“almost immediately” after it was sent to L.G., and the subject line of the forwarded
email indicated that it was related to the scam. Thus, there is sufficient evidence to
3 support McIntosh’s convictions on counts 1 through 9.
Finally, viewed favorably to the prosecution, the evidence, including
Malcolm’s testimony describing how the co-conspirators moved money to Jamaica
and victim L.R.’s testimony that she received unsolicited checks from “sponsor[s]”
and was told to cash them at different banks and to send that money to pay the
“taxes” she owed on her winnings is sufficient to support McIntosh’s conviction for
conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h), as
charged in count 10. Jaimez, 45 F.4th at 1124 (discussing the elements of conspiracy
to commit money laundering); see also United States v. Singh, 995 F.3d 1069, 1075
(9th Cir. 2021) (discussing concealing ownership). McIntosh’s reliance on United
States v. Wilkes, 662 F.3d 524 (9th Cir. 2011), to support his merger argument is
misplaced. In Wilkes, we recognized that to obtain a conviction for the substantive
offense of money laundering, the “[t]ransactions that created the criminally-derived
proceeds must be distinct from the money-laundering transaction.” Id. at 545
(citation and quotation omitted). McIntosh, however, was convicted of conspiracy
to commit money laundering, and we have held that “[t]he commission of the
substantive offense and the conspiracy to commit it are two separate and distinct
offenses, and a conviction on the substantive count does not merge the conspiracy
count.” Baker v. United States, 393 F.2d 604, 610 (9th Cir. 1968) (citation omitted).
4 2. McIntosh argues the district court committed plain error when it
instructed the jury that, for purposes of wire and mail fraud, McIntosh must have
acted with “the intent to defraud, that is[,] the intent to deceive or cheat.” We review
this instruction for plain error because McIntosh did not object to these instructions
at trial. Jaimez, 45 F.4th at 1129. “Any omission or misstatement of an element of
an offense in the jury instructions is constitutional error and, therefore, requires
reversal unless we find the error harmless beyond a reasonable doubt.” Wilkes, 662
F.3d 544 (quotations and citations omitted).
The parties acknowledge that, in United States v. Miller, 953 F.3d 1095 (9th
Cir. 2020), we held that for wire and mail fraud, the intent to defraud “requires the
intent to deceive and cheat—in other words, to deprive the victim of money or
property by means of deception,” id. at 1103. Assuming that giving a “deceive or
cheat” instruction was plain error, it was harmless considering testimony that the
purpose of the conspiracy was to “swindle people out of their money” and that
McIntosh intended to deceive and cheat the victims.
The district court did not plainly err when responding to the jury’s question
during deliberations. United States v. Anekwu, 695 F.3d 967, 987 (9th Cir. 2012)
(concluding that “re-reading the correct jury instructions” in response to a jury
question was not plain error). The district court has wide discretion in “crafting” its
response to the jury’s questions. See United States v. Humphries, 728 F.3d 1028,
5 1033 (9th Cir. 2013). The district court instructed the jury to rely on the instructions
it had already given, and McIntosh did not argue that the relevant conspiracy
instructions were incorrect or provide an alternative response that the court should
have given either to eliminate any jury confusion or to clarify the instructions.
3. The district court did not err in determining the amount of fraud loss
attributable to McIntosh. See U.S.S.G. §§ 2B1.1, 1B1.3(a)(1)(B); United States v.
Treadwell, 593 F.3d 990, 1002 (9th Cir. 2010) (explaining that § 2B1.1 “requires the
district court to calculate the amount of loss attributable to an individual defendant’s
conduct in perpetrating a fraud” and further explaining how to determine that amount
when it is the result of “jointly undertaken criminal activity”), overruled on other
grounds by Miller, 953 F.3d at 1102. Although the district court did not make
specific findings during the sentencing hearing, it adopted the presentence report
which contained sufficient findings. United States v. Riley, 335 F.3d 919, 928 (9th
Cir. 2003) (holding that adoption of factual findings in a presentence report is
sufficient to determine the scope of a conspirator’s participation in a conspiracy).
4. The district court did not abuse its discretion by denying McIntosh a
minor role reduction under U.S.S.G. § 3B1.2. See United States Chichande, 113
F.4th 913, 922 (9th Cir. 2024) (concluding that the finding that the defendant
represented an average participant was supported by facts in, and inferences that
could be drawn from, the record including that the “owner and recruiter had high or
6 mid-high culpability”). The district court commented that McIntosh was “more
likely than not . . . an organizer and a leader.” The record supports this contention.
Among other things, McIntosh recruited others, had people working for him,
distributed lead lists, created an email account that received lead lists, and took calls
that were transferred from other participants in the scheme to “crack” the victims.
AFFIRMED.