United States v. Paula Anthony

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 10, 2019
• Docket: 17-10326
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 10 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10326 17-10405 Plaintiff-Appellee, D.C. No. v. 2:16-cr-00083-DLR-1

PAULA ANTHONY, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Argued and Submitted December 17, 2018 San Francisco, California

Before: GILMAN,** PAEZ, and OWENS, Circuit Judges.

Paula Anthony appeals from her jury conviction and sentence for conspiracy

to defraud the United States (18 U.S.C. § 371), mail fraud (18 U.S.C. § 1341),

aggravated identity theft (18 U.S.C. § 1028A), and conspiracy to commit money

laundering (18 U.S.C. § 1956(h)). As the parties are familiar with the facts, we do

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. not recount them here. We affirm in part, vacate in part, and remand.

1. Anthony argues, for the first time on appeal, that two jury instructions

constructively amended the indictment. We conclude that there was no plain error.

See United States v. Ward, 747 F.3d 1184, 1188 (9th Cir. 2014).

Regarding Count 1, there was no constructive amendment because the

instruction required the jury to find all the elements of conspiracy to defraud the

United States, such a conspiracy being in violation of 18 U.S.C. § 371. See United

States v. Rodman, 776 F.3d 638, 642 (9th Cir. 2015) (setting forth elements of

conspiracy to defraud).

Regarding Count 14, conspiracy to commit money laundering, the

government concedes that the instruction was overbroad because it erroneously

included avoiding transaction reporting requirements under State or Federal law.

See 18 U.S.C. § 1956(a)(1)(B)(ii). However, Anthony was not prejudiced because

there was no evidence or argument at trial about statutory transaction reporting

requirements or Anthony’s conduct to avoid them, and therefore the jury could not

have convicted her for uncharged conduct. See Ward, 747 F.3d at 1191 (noting

that “[t]his Court has rejected constructive amendment claims when jury

instructions diverge materially from the indictment, but when no evidence was

introduced at trial that would enable the jury to convict the defendant for conduct

with which he was not charged”).

2 2. Anthony also argues that the district court’s forfeiture order is improperly

based on joint and several liability in light of the Supreme Court’s intervening

decision in Honeycutt v. United States, 137 S. Ct. 1626 (2017). We need not

resolve whether Honeycutt extends to forfeiture under 18 U.S.C. § 981(a)(1)(C)—

the forfeiture statute at issue here—because the forfeiture order is consistent with

Honeycutt regardless. Under Honeycutt, Anthony personally “possess[ed],”

“acquired[,] or used” the $312,678 in fraudulent tax refunds, which were directly

connected to her “participation in the crime.” Id. at 1632-33. Among other things,

the checks were made payable to Anthony at her addresses, and she deposited the

checks in her own bank accounts.

3. Finally, the parties agree that a limited remand is appropriate for

Anthony’s supervised release condition concerning communicating or interacting

with convicted felons. For the first time on appeal, Anthony challenges this

condition because her son is a felon. We remand so that the district court may

either modify this condition or make further factual findings. See United States v.

Wolf Child, 699 F.3d 1082, 1087 (9th Cir. 2012).

Each party shall bear its own costs on appeal.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.