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United States v. Stargell

United States Court of Appeals, Ninth Circuit

August 2, 2013

United States of America, Plaintiff-Appellee,
v.
Willena Stargell, Defendant-Appellant.

Argued and Submitted March 7, 2013-Pasadena, California

Appeal from the United States District Court for the Central District of California Terry J. Hatter, Senior District Judge, Presiding, D.C. No. 5:09-cr-00005-TJH-1

Marisa L. D. Conroy (argued), Encinitas, California, for Defendant-Appellant.

André Birotte, Jr., United States Attorney; Antoine F. Raphael, Assistant United States Attorney, Joseph R. Widman, Assistant United States Attorney, Ryan White (argued), Assistant United States Attorney, United States Attorneys' Office, Riverside, California, for Plaintiff-Appellee.

Before: Sidney R. Thomas, Andrew D. Hurwitz, Circuit Judges, and Ralph R. Beistline, Chief District Judge. [*]

SUMMARY [**]

Criminal Law

The panel affirmed a defendant's convictions and sentence for fraud by wire affecting a financial institution, aiding and assisting in the preparation of a false return, fraud by wire, and aggravated identity theft, arising out of the defendant's work as a tax preparer.

The panel held that new or increased risk of loss is sufficient to establish that wire fraud "affects" a financial institution within the meaning of 18 U.S.C. § 1343, and that there was sufficient evidence for a rational jury to conclude that the defendant's fraudulent returns exposed the banks to an increased risk of loss.

Because the wire fraud that was the predicate to the aggravated identity theft did not occur until after 18 U.S.C. § 1028A's enactment date, the panel rejected the defendant's contention that the jury may have convicted the defendant based solely on pre-enactment conduct.

The panel rejected the defendant's contention that government and the district court infringed on the core of her defense counsel's role, in violation of the defendant's Sixth Amendment rights, by allowing the defendant's former attorney to testify at sentencing regarding the loss and restitution calculations, where the former attorney was called by the defendant's new attorney. Because the former attorney's testimony did not contain privileged communications, the panel rejected the defendant's contention that admission of the testimony violated the attorney-client privilege.

The panel held that the district court did not clearly err in calculating the loss and restitution amounts.

OPINION

BEISTLINE, Chief District Judge:

Willena Stargell appeals her convictions of twelve felonies arising out of her work as a tax preparer for various clients.

The superseding indictment charged fraud by wire affecting a financial institution (Counts 1 to 6); aiding and assisting in the preparation of a false return (Counts 7 to 12); fraud by wire (Counts 13 to 15); and aggravated identity theft (Counts 16 to 18). The district court dismissed Counts 6, 12, and 18 on the government's motion. After the district court granted her motion for acquittal on Counts 3, 9, and 15, Stargell was convicted on the remaining charges. She claims that the district court erred by: (1) failing to grant her motion for judgment of acquittal as to Counts 1, 2, 4, and 5 of the superseding indictment despite the government's failure to prove that the underlying conduct affected a financial institution; (2) permitting convictions on Counts 16 and 17 without excluding the possibility that they were based on conduct that preceded the enactment of 18 U.S.C. § 1028A; (3) allowing Stargell's former attorney to testify at the sentencing hearing; and (4) improperly calculating loss and restitution amounts.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm the convictions and sentences.

I

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