United States v. Michael Quiroz

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 2019
• Docket: 17-10358
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10358 18-10037 Plaintiff-Appellee, D.C. No. v. 4:11-cr-00794-RCC-DTF-3

MICHAEL QUIROZ, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding

Submitted September 11, 2019** Pasadena, California

Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.

Michael Quiroz appeals his convictions for wire fraud and conspiracy,

as well as the district court’s $2.3 million restitution order. Quiroz challenges the

admission of certain loan files as well as the admission of charts summarizing the

government’s evidence. He also argues that his restitution amount should be offset

* 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 because the banks he victimized received a bailout from the U.S. Treasury. We

affirm.

1. Quiroz first argues that the district court erred in admitting files

containing loan applications that he prepared that allegedly contained materially

false information. Our review is for abuse of discretion. See United States v.

Catabran, 836 F.2d 453, 456 (9th Cir. 1988).

The loan file records were admissible nonhearsay as they were

instrumentalities of the charged crimes, alleged to contain material false

statements. See Fed. R. of Evid. 801(c). In addition, many parts of the files were

nonhearsay because they were statements of a party opponent or statements made

in furtherance of a conspiracy. See Fed. R. of Evid. 801(d)(2)(A) and (E). And, the

files are admissible as records of a regularly conducted activity under Rule 803(6)

of the Federal Rules of Evidence, even though the files contained photocopies, see

Fed. R. Evid. 1003, and were made by an entity other than the custodian, see

United States v. Childs, 5 F.3d 1328, 1333–34 (9th Cir. 1993). The district court

did not abuse its discretion in admitting the loan files.

2. The district court also did not abuse its discretion, see United States v.

Meyers, 847 F.2d 1408, 1411 (9th Cir. 1988), in admitting evidence in summary-

chart form. Although this court has “long held that . . . pedagogical devices should

be used only as a testimonial aid, and should not be admitted into evidence or

2 otherwise be used by the jury during deliberations,” United States v. Wood, 943

F.2d 1048, 1053 (9th Cir. 1991), the court has never reversed a conviction because

the district court improperly received into evidence summary exhibits like those

here, see United States v. Anekwu, 695 F.3d 967, 981–82 (9th Cir. 2012). The jury

was properly instructed, the underlying evidence was admissible, the defendant did

not object to the accuracy of the summary, and any error in admitting the charts

was harmless. See id.

3. Lastly, Quiroz argues that his restitution amount should have been

offset because his victims, several large banks, received bailout funds from the

government in 2008. “We review the district court’s restitution order ‘for an abuse

of discretion, provided it is within the bounds of the statutory framework. Factual

findings supporting an order of restitution are reviewed for clear error.’” United

States v. Eyraud, 809 F.3d 462, 467 (9th Cir. 2015) (quoting United States v.

Waknine, 543 F.3d 546, 555 (9th Cir. 2008)). Here, the Mandatory Victims

Restitution Act forecloses the relief Quiroz seeks. See 18 U.S.C. § 3664(f)(1)(B).

And, in any case, the banks repaid the funds to the Treasury.

AFFIRMED.