United States v. Jeffrey Nowak ( 2018 )

FILED
NOT FOR PUBLICATION
AUG 24 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 17-10120
17-10384
Plaintiff-Appellee,
D.C. No.
v. 2:13-cr-00132-LDG-VCF-2
JEFFREY NOWAK,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted August 17, 2018**
San Francisco, California
Before: BEA and CHRISTEN, Circuit Judges, and McLAUGHLIN,*** District
Judge.
*
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 Mary A. McLaughlin, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Defendant-Appellant Jeffrey Nowak (“Nowak”) appeals the district court’s
orders denying his motion for a Franks hearing and denying his motion for a new
trial based on newly discovered evidence. See Fed. R. Crim P. 33(b)(1). Nowak
also appeals his prison sentence of 41 months. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.
1. Nowak is not entitled to an evidentiary hearing because of alleged
deficiencies in a search warrant affidavit prepared by IRS Special Agent Joshua
Bottjer (“Agent Bottjer”). See Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
Nowak failed to make a preliminary showing that Agent Bottjer deliberately or
recklessly omitted in his warrant affidavit knowledge that cash deposits in
Nowak’s bank account were attributable to gambling winnings from 2006 through
2009. See United States v. Stanert, 762 F.2d 775, 780 (9th Cir. 1985).
Additionally, Nowak’s gambling winnings were not material to the magistrate
judge’s finding of probable cause. See United States v. Martinez-Garcia, 397 F.3d
1205, 1215 (9th Cir. 2005). Even assuming Nowak received all of his gambling
winnings in cash, a substantial portion of his cash deposits remained unaccounted
for. Nowak also suffered net gambling losses of nearly $65,000 during the
relevant time period.
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2. The district court did not abuse its discretion by denying Nowak’s motion
for a new trial. To compute restitution for Nowak’s co-conspirator, Ramzi
Suliman (“Suliman”), the government omitted his unpaid, federal taxes from 2006
in the amount of $41,876. Although this information may constitute newly
discovered evidence, it does not warrant a new trial. See United States v. Hinkson,
585 F.3d 1247, 1264 (9th Cir. 2009) (en banc). Additional evidence regarding the
government’s method of calculating the amount of Suliman’s restitution is
immaterial and cumulative. See id.; United States v. Kohring, 637 F.3d 895, 910
(9th Cir. 2011). During Nowak’s trial, the defense successfully impeached
Suliman by establishing that his plea deal included a restitution figure that was less
than his overall tax liability. Further, a new trial would not result in acquittal in
light of overwhelming evidence supporting the jury’s guilty verdict. See United
States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005).
3. Nowak’s 41-month sentence does not constitute an abuse of discretion
under 18 U.S.C. § 3553(a)(6). Although Suliman received a sentence of 12
months and one day, Nowak and Suliman do not have similar records and were not
found guilty of similar conduct. See 18 U.S.C. § 3553(a)(6). Suliman was
convicted of one count of conspiracy to defraud the United States, see 18 U.S.C. §
371, while Nowak was found guilty of one count of conspiracy, three counts of
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assisting in filing false corporate tax returns, and four counts of attempting to
evade and defeat individual income taxes, see 26 U.S.C. §§ 7201, 7206(2); United
States v. Monroe, 943 F.2d 1007, 1017 (9th Cir. 1991). Whereas Suliman
cooperated with the government by pleading guilty, Nowak contested his charges
by proceeding to trial. See United States v. Carter, 560 F.3d 1107, 1121 (9th Cir.
2009); United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir. 1989). Nowak’s
sentence was therefore reasonable.
AFFIRMED.
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