United States v. DiPace

41 F. App'x 947

Opinions

MEMORANDUM

Footnotes

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Anthony DiPace appeals his jury conviction and sentence for multiple counts of mail fraud in violation of 18 U.S.C. § 1341. DiPace was convicted for making false statements in an application to serve as investment monitor for a Taft-Hartley pension fund.

TRIAL ISSUES

He first contends that his misstatements were not material. His application, however, grossly overstated his qualifications by claiming that he had forty TaftHartley fund clients, when he only had three; that ten Taft-Hartley clients had assets in excess of $100 million, when none did; and that he had been recognized for thirteen years as a top performer of the brokerage firm with which he was affiliated, when he had been so recognized in only one year. Trustees of the pension fund testified at trial that his claimed prior experience was to them an important job qualification. The Supreme Court has said that the standard for materiality is whether a false statement has a “natural tenden cy to influence, or is capable of influencing,” the decision maker. Neder v. U.S., 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The false statements here, according to the testimony of the trustees, not only could have influenced them, but did influence their determination that Di-Pace was a highly qualified candidate. The materiality requirement was satisfied.

DiPace also contends that the trustees should have verified the veracity of his statements, relying on an “independent source” rule. See e.g., Assocs. in Adolescent Psychiatry, SC v. Home Life Ins. Co., 941 F.2d 561, 570-71 (7th Cir.1991). This court has not adopted such a rule, noting that it is inconsistent with the law of this circuit. See U.S. v. Hanley, 190 F.3d 1017, 1023 & n. 2 (9th Cir.1999). Moreover, even in the Seventh Circuit, which has adopted it, fraud victims are not required to undertake an investigation of the veracity of all statements. Rather, only a misstatement that can easily be detected by information in a readily available public record is not fraudulent. The truth or falsity of DiPace’s statements could not be checked against any readily available public records. They were fraudulent.

In a related argument, DiPace contends that the instruction on materiality was erroneous. There was no objection, so we review for plain error. U.S. v. Dipentino, 242 F.3d 1090, 1094 (9th Cir.2001). The judge instructed the jury that to convict, it must find that a false representation was made of a kind that “could influence a person or other entity to part with money.” The formulation is consistent with the Supreme Court’s discussion in Neder, which is the controlling authority in mail fraud cases. There was no plain error in the use of the word “could” rather than “would” in the instruction as DiPace belatedly contends.

DiPace challenges the admission of evidence of other bad acts, the most significant being his less than truthful application to Moors & Cabot and the churning of the Local 190 Welfare Fund Account. At trial, the defense was that another LPL employee, not DiPace, had prepared the offending portion of the pension fund application and that the false information must have been a mistake. The Moors & Cabot application was admitted to show absence of mistake. The Local 190 Welfare Fund was admitted to show motive, because of the proximity in time of discovery of that fraud to the application involved here. The district court gave limiting instructions with respect to the challenged evidence of other bad acts, telling the jury that it could consider those acts only as showing motive, opportunity, plan or purpose, not as evidence of guilt in this case. We find no error.

DiPace also contends that the district court committed plain error in admitting evidence that DiPace did not respond to a letter from LPL requesting information about lies on the application to the pension fund. The Fifth Amendment’s privilege against self-incrimination does not apply to questioning by a non-governmental actor. U.S. v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir.1998).

DiPace complains of the prosecutor’s questioning concerning union-management disputes at the pension fund, but this subject was raised by the defense as part of its theory that the trustees were not influenced by DiPace’s false statements. DiPace similarly challenges questions by the prosecutor on cross-examination of Peter Perry. DiPace contends that the questioning injected irrelevant evidence of a luxurious lifestyle. The questioning was, however, in the nature of impeachment to suggest the witness’ possible motivation to lie on account of DiPace’s largesse. There was no abuse of discretion in permitting the questioning.

DiPace also contends that the district court abused its discretion in denying Di-Pace’s motion for a mistrial, which was based on allegations of prosecutorial misconduct. These allegations largely consist of DiPace’s objections to the introduction of evidence, discussed above. DiPace has not drawn our attention to any instances of prosecutorial misconduct that could have affected the verdict in this case, and we therefore affirm. U.S. v. Sarkisian, 197 F.3d 966, 988 (9th Cir.1999).

SENTENCING

The district court increased the base offense level of six by twelve points based on a calculated loss of approximately 1.5 million dollars. This estimate was based in major part upon speculation that had the pension fund hired DiPace, it would have “lost” the total amount of salary and commissions he would have received for one year. There is no evidentiary basis for any such finding, and, indeed, no evidence that DiPace intended to cause the pension fund any out-of-pocket loss. In addition, the district court included, as “loss”, the commissions that DiPace earned from other clients while his pension fund application was under consideration. That income was not received as a result of any conduct relevant to the crime charged. The increase of twelve points for intended loss was error. The two point increase for abuse of position of trust, under U.S.S.G. § 3B1.3, also appeal’s to be in relation to DiPace’s services for his other clients. It is not related to this fraud, and this enhancement was also error.

The district court also increased the base offense level by two points for more than minimal planning. See U.S.S.G. § 2F1.1. This is supported by the evidence and not challenged on appeal. Similarly, DiPace does not challenge the two point increase for violation of a judicial order imposed as a result of lying during court-ordered arbitration. See U.S.S.G. § 2F1.1(b)(4)(c). DiPace also does not challenge the two-point increase for obstruction of justice, imposed under U.S.S.G. § 3C1.1 for the introduction of false testimony at trial. The base offense level of 6, and the three properly imposed two-point enhancements, bring DiPace’s total offense level to 12.

We remand for resentencing.

The conviction of the defendant is AFFIRMED and the sentence is VACATED AND REMANDED for resentencing.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.