United States v. Emiel Kandi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2021
• Docket: 20-30061
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 16 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30061

Plaintiff-Appellee, D.C. No. 3:13-cr-05369-RBL-1 v.

EMIEL A. KANDI, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Submitted April 14, 2021** Seattle, Washington

Before: O’SCANNLAIN, GRABER, and CALLAHAN, Circuit Judges.

Defendant Emiel Kandi appeals three conditions of his three-year term of

supervised release. Reviewing for abuse of discretion, United States v. Napulou,

593 F.3d 1041, 1044 (9th Cir. 2010), we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. The district court did not abuse its discretion in requiring Defendant to

deposit all income into, and pay all expenses from, a single bank account.

Defendant pleaded guilty to defrauding the government of more than $800,000

through falsified mortgage applications. He then failed to comply with a condition

that he supply his probation officer with an accurate accounting of his assets and

income. Thus, the district court permissibly concluded that a third-party

accounting of Defendant’s finances would best reflect his characteristics, deter

future lawbreaking, and protect the public. 18 U.S.C. §§ 3583(e)(2), 3553(a). That

Defendant, who submitted mortgage applications to financial institutions, now has

a philosophical objection to banking does not alter the calculus.

Nor did the district court run afoul of our cases when it told Defendant that it

had "delegated" authority to resolve disputes to the probation officer. Cf. United

States v. Stephens, 424 F.3d 876, 883 (9th Cir. 2005) (holding that the district

court impermissibly delegated its statutory duty "when it failed to state the

maximum number of non-treatment drug tests the probation officer could impose"

(emphasis omitted)). The district court made that comment after it stated that it

would impose the disputed condition. In context, the comment did not

retroactively taint that decision. The court’s statement is most naturally read not as

2 delegating the decision of what condition to impose but, rather, as inviting

Defendant to demonstrate to his probation officer that his compromise is workable.

2. The district court did not abuse its discretion in requiring that Defendant

receive approval before working "in the field of mortgage loans and debt

consolidation." The district court permissibly concluded that the condition is

"reasonably related" to the nature and circumstances of the offense, protecting the

public, and deterring future offenses. 18 U.S.C. §§ 3583(e)(2), 3583(d). That the

government was open to an alternative condition as a compromise does not

undermine the district court’s decision. Furthermore, if Defendant obtains

approval, he may still work in the commercial lending industry.

3. The district court did not abuse its discretion in declining to modify its

condition that Defendant "shall not be self-employed nor shall [he] be employed by

friends, relatives, associates or persons previously known to the defendant, unless

approved by the U.S. Probation Officer." Given Defendant’s fraudulent loan

scheme and his failure to comply with financial disclosure conditions early in his

term of supervision, the district court permissibly concluded that Defendant would

fare better if a neutral third party supervised his work. Defendant’s suggestion that

the condition infringes on his "fundamental right to familial association," United

3 States v. Wolf Child, 699 F.3d 1082, 1087 (9th Cir. 2012), is not well taken.

Defendant is not barred from associating with family members.

AFFIRMED.