United States v. Judith Paixao

Opinion

FILED NOT FOR PUBLICATION MAR 22 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50121

Plaintiff-Appellee, D.C. No. 3:13-cr-03788-JM-1

v. MEMORANDUM* JUDITH ANN PAIXAO,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 16-50122

Plaintiff-Appellee, D.C. No. 3:13-cr-03788-JM-2

v.

KEVIN A. LOMBARD,

Appeals from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding

Argued and Submitted February 7, 2018 Pasadena, California

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

A jury convicted Defendants Judith Paixao and Kevin Lombard of a number

of crimes relating to their misuse of funds belonging to the Wounded Marine

Careers Foundation ("WMCF"). We affirm.1

1. The government offered sufficient evidence in support of each of

Defendants’ convictions under 18 U.S.C. § 666(a)(1)(A). When viewed in the

light most favorable to the government, United States v. Overton, 573 F.3d 679,

685 (9th Cir. 2009), the evidence shows that Defendants unlawfully transferred

WMCF funds to their personal accounts. Defendants’ argument that the transfers

might have represented valid reimbursements is unavailing because (1) the

transfers were "rounded off," suggesting that they were not reimbursements, and

(2) the government "need not exclude every reasonable hypothesis consistent with

innocence," United States v. Miller, 688 F.2d 652, 663 (9th Cir. 1982).

2. Reviewing for plain error, United States v. Conti, 804 F.3d 977, 981 (9th

Cir. 2015), we hold that the district court did not err by failing to instruct the jury

** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 1 In a concurrently filed opinion, we affirm with respect to a separate issue. 2 on the bona fide salary exception in 18 U.S.C. § 666(c) because Defendants were

not authorized to receive salaries when they withdrew funds from WMCF.

3. The district court did not err by sentencing Defendants on multiple counts

of violating 18 U.S.C. § 666(a)(1)(A). Like the federal mail fraud statute,

§ 666(a)(1)(A) permits a separate count for each illicit transfer. See United States

v. Vaughn, 797 F.2d 1485, 1493 (9th Cir. 1986) (holding that each mailing in

violation of the federal mail fraud statute constitutes a separate violation of the

statute).2

4. Reviewing for plain error, United States v. Gadson, 763 F.3d 1189, 1215

(9th Cir. 2014), we hold that the district court did not err in instructing the jury on

Pinkerton liability. We have upheld similarly flawed instructions on Pinkerton

liability. United States v. Moran, 493 F.3d 1002, 1009–10 (9th Cir. 2007) (per

curiam).

5. We decline to consider Defendants’ ineffective assistance of counsel

claim. "As a general rule, we do not review challenges to the effectiveness of

defense counsel on direct appeal." United States v. Liu, 731 F.3d 982, 995 (9th

Cir. 2013). No exception applies here. Id.

2 Defendants make several additional arguments that depend on the success of their arguments about 18 U.S.C. § 666. Because Defendants’ convictions under § 666 withstand review, those claims necessarily fail. 3 5. The government offered sufficient evidence in support of Paixao’s

conviction under the federal mail fraud statute, 18 U.S.C. § 1341. Viewing the

evidence in the light most favorable to the government, United States v. Flyer, 633

F.3d 911, 917 (9th Cir. 2011), the evidence shows that Paixao repeatedly misled

WMCF’s donors before she received the Bob Woodruff Foundation’s contribution

through the mail. The evidence thus supports an inference that Paixao had already

devised a scheme to defraud WMCF’s donors at that time.

6. We reject Paixao’s "cumulative errors" argument because there appear to

have been, at most, only a few minor errors in Paixao’s trial. Parle v. Runnels, 505

F.3d 922, 927 (9th Cir. 2007).

AFFIRMED.