United States v. Charles Head , 700 F. App'x 612 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10438
Plaintiff-Appellee, D.C. No.
2:08-cr-00093-KJM-1
v.
CHARLES HEAD, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 14-10442
Plaintiff-Appellee, D.C. No.
2:08-cr-00116-KJM-1
v.
CHARLES HEAD,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 14-10493
Plaintiff-Appellee, D.C. No.
2:08-cr-00093-KJM-2
v.
JEREMY MICHAEL HEAD,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted June 15, 2017
San Francisco, California
Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and CARNEY,**
District Judge.
Charles Head and Jeremy Michael Head appeal their convictions for
conspiracy to commit mail fraud and mail fraud, arising from a foreclosure rescue
scheme in which they targeted and defrauded homeowners in financial distress.
Defendants allege that the district court committed Speedy Trial Act violations in
Head I and Head II and failed to provide a specific unanimity instruction in Head
I. Jeremy Michael also contends that the district court erred in sentencing him, and
Charles claims that his conviction in Head II violates the prohibition against
double jeopardy. We affirm the convictions and sentence.
1. The Speedy Trial Act does not require a district court to make an explicit
“ends of justice” finding; instead, it requires that the trial court set forth in the
record its “reasons for finding that the ends of justice served by the granting of [a]
**
The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
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continuance outweigh the best interests of the public and the defendant in a speedy
trial.” 18 U.S.C. § 3161(h)(7)(A) (emphasis added). Section 3161(h)(7)(B)
provides factors that a judge must consider in deciding whether to grant an “ends
of justice” continuance. The code at issue here corresponds to those factors, and
referring to that code therefore provides the reason why the district court found that
the ends of justice were served by granting a continuance. See United States v.
Medina, 524 F.3d 974, 986 (9th Cir. 2008) (explaining that a district court’s
“discussion of the statutory factors [wa]s adequate to support a continuance that
serve[d] the ends of justice . . . .”). Defendants do not dispute that the
continuances were justified; they acknowledge that the cases were complex and
that counsel needed time to prepare.
Moreover, the code used by the district court to explain its reasons for
continuances was not non-specific or underinclusive in the context of the record in
this appeal. That various code provisions may be mutually exclusive does not
mean that the district court erred by relying on those provisions as alternative
holdings to justify granting a continuance. And that Defendants may not have
intuitively understood the code is irrelevant, as they were represented by counsel
and it is clear from the record that their counsel understood the references to the
code.
2. The district court did not abuse its discretion in failing to give a specific
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unanimity instruction because there was no genuine possibility that Defendants
would be convicted by a non-unanimous jury. See United States v. Lyons, 472
F.3d 1055, 1068 (9th Cir. 2007) (stating that a specific unanimity instruction is
required only when there exists a “genuine possibility of jury confusion or [a
possibility] that a conviction may occur as the result of different jurors concluding
that the defendant committed different acts” (quoting United States v. Kim, 196
F.3d 1079, 1082 (9th Cir. 1999))). On this record, no “genuine possibility” exists
that some jurors may have found Defendants guilty based only on the false
statements to lenders, as opposed to the false statements to homeowners.
3. The district court did not err in applying the vulnerable victim
enhancement under United States Sentencing Guidelines § 3A1.1, nor did it
impose on Jeremy Michael Head a substantively unreasonable sentence. The
victims here, as a result of their financial background and risk of foreclosure, were
more likely to succumb to the criminal conduct. See United States v. Peters, 962
F.2d 1410, 1417 (9th Cir. 1992) (affirming application of vulnerable victim
enhancement because the defendants had “sought out and targeted . . . only
individuals whom they believed had poor credit histories”). Moreover, the district
court downwardly varied from the Guidelines range in imposing Jeremy Michael
Head’s sentence, and the evidence against Jeremy Michael Head—namely, his
position as “one of the more culpable” members of the conspiracy—supported the
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court’s decision not to vary even further downward.
4. Although the Head I and Head II conspiracies sought to defraud
homeowners using similar methods, the Head II conspiracy was sufficiently
different in scope and approach that it was at least not plain error to allow Charles
Head to be tried in Head II. See United States v. Ziskin, 360 F.3d 934, 944 (9th
Cir. 2003) (“[S]ome interrelationship between conspiracies does not necessarily
make them the same criminal enterprise.” (quoting United States v. Guzman, 852
F.2d 1117, 1121 (9th Cir. 1988))); United States v. Montgomery, 150 F.3d 983,
990 (9th Cir. 1998) (explaining that the court “examine[s] the evidence in the light
most favorable to the prosecution to determine if any rational trier of fact could
have found that more than one conspiracy existed”); United States v. Stoddard, 111
F.3d 1450, 1454 (9th Cir. 1997) (describing the factors used to analyze whether
two conspiracy allegations charge the same offense). Because it did not violate the
Double Jeopardy Clause for Charles Head to have been tried for conspiracy to
commit mail fraud in Head II, his convictions for mail fraud in Head II likewise
does not violate the Double Jeopardy Clause.
Defendants’ convictions and Jeremy Michael Head’s sentence are therefore
AFFIRMED.
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