United States v. Kevin Kyes

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 8, 2020
• Docket: 18-10393
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 8 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10393

Plaintiff-Appellee, D.C. No. 3:16-cr-00250-SI-2

v. MEMORANDUM* KEVIN KYES,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding

Submitted December 2, 2019** San Francisco, California

Before: SILER,*** BYBEE, and R. NELSON, Circuit Judges.

Kevin Kyes appeals his conviction for several counts of wire fraud, money

laundering, and conspiracy. 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Mr. Kyes contends that the district court improperly permitted bad-acts

evidence and prejudicially denied a continuance of trial. Specifically, Mr. Kyes

asserts that the district court erred in allowing a stipulation to be read to the jury

that Mr. Kyes and his co-conspirator owed money to several named individuals.

He also argues that the district court should have granted a continuance because

Mr. Kyes was experiencing an episode of ill health that made it difficult for him to

meaningfully participate at trial. We review both issues for abuse of discretion.

United States v. Parks, 285 F.3d 1133, 1141 (9th Cir. 2002); United States v.

LeMay, 260 F.3d 1018, 1024 (9th Cir. 2001); United States v. Garrett, 179 F.3d

1143, 1144–45 (9th Cir. 1999).

1. Mr. Kyes argues that reading the stipulation regarding his owing debts to

several individuals violated Federal Rule of Evidence 404(b) by impermissibly

introducing prior-bad-acts evidence. He also asserts that the stipulation was

unduly prejudicial under Rule 403.

A simple reading of the stipulation, however, fails to show anything harmful

or unduly prejudicial to Mr. Kyes. The stipulation simply states that Mr. Kyes, his

co-conspirator, and entities controlled by them owed money to named individuals.

Nothing in the stipulation implies that Mr. Kyes or his co-conspirator had

attempted to defraud these individuals. And Mr. Kyes points to no case holding

2 that simply being indebted to others constitutes a prior bad act warranting

exclusion under Rule 404(b). Meanwhile, establishing that Mr. Kyes and his

affiliates owed money to the named individuals potentially provided proof of

“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident” in a case involving money laundering and wire fraud.

Fed. R. Evid. 404(b)(2). For the same reason, such evidence is highly

relevant—meaning there is no apparent abuse of discretion under Rule 403. And

even assuming that allowing this stipulation was erroneous, Mr. Kyes all but

concedes that the other evidence in this case was overwhelming. Thus, the

admission of the stipulation would be nothing more than harmless error. See

United States v. Yazzie, 59 F.3d 807, 814 (9th Cir. 1995).

2. Mr. Kyes next contends that the district court abused its discretion in not

granting a continuance of trial to allow Mr. Kyes to recover from a health incident.

On the morning trial was scheduled to begin, Mr. Kyes checked himself into a

hospital complaining of chest pain. He was discharged from the hospital by 8:30

that morning, but rather than going to court, he drove to see his primary-care

physician. Mr. Kyes then received a doctor’s note saying that he should be

excused from court for seven to ten days.

3 Mr. Kyes made no concerted effort to contact the district court after his

discharge from the hospital. The district court also noted that Mr. Kyes had told

hospital staff that he had an appointment scheduled with his primary-care

physician that day—even though trial was scheduled to commence. As for his

health, the district court found that there was no need to continue the trial date.

The court found that Mr. Kyes was taking his medication and that he had been able

to participate in trial without any apparent problem. The court then highlighted

how a continuance would significantly inconvenience the government.

Specifically, the government’s three main witnesses had flown to California from

Japan and a Japanese interpreter had been retained for the week. Further still, a

forty-nine person venire had been assembled and the district judge’s schedule

would have likely precluded trial for at least another eight weeks.

Nothing in the record suggests an abuse of discretion. The district court

specifically noted that Mr. Kyes exhibited no signs of physical distress during trial

and that he was able to assist in his defense. Thus, denying the motion for

continuance resulted in no apparent prejudice to Mr. Kyes. The court also

emphasized that Mr. Kyes had not been diligent in contacting the court about a

health issue which—considering his discharge from the hospital—did not appear

urgent. Meanwhile, the court found that the government would be harmed by a

4 continuance and also noted the inconvenience to the court of postponing a long-

planned trial. Given the district court’s weighing of these factors, no abuse of

discretion is apparent. See United States v. Flynt, 756 F.2d 1352, 1359–62 (9th

Cir. 1985).

AFFIRMED.