United States v. Tanya Marchiol , 642 F. App'x 760 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 18 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10106
Plaintiff - Appellee, D.C. No. 2:13-cr-01391-SRB-1
v.
MEMORANDUM*
TANYA MARIA MARCHIOL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted March 16, 2016**
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Tanya Marchiol appeals her convictions and sentence for three counts
of money laundering and five counts of structuring a financial transaction. We
have jurisdiction under 28 U.S.C. § 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. At trial, Marchiol sought to introduce Internal Revenue Service (“IRS”)
mitigation guidelines for administrative seizures. Marchiol wanted to show that,
because the IRS returned a portion of the money confiscated from her home as part
of a settlement agreement, the IRS must have determined that Marchiol had not
engaged in an illegal structuring transaction. The district court concluded that the
guidelines could lead the jury to draw an improper inference about the IRS’s
reasons for settling. In so ruling, the district court did not abuse its discretion. See
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (“[C]ourts of
appeals uphold Rule 403 rulings unless the district court has abused its
discretion.”).
Even if the guidelines should have been admitted, any error was harmless.
See Heyne v. Caruso, 69 F.3d 1475, 1478 (9th Cir. 1995) (stating that any error
must be prejudicial and affect a party’s substantial rights). The jury heard
testimony that Marchiol knew the IRS planned to seize her assets; she accordingly
decided to “get[] the cash out before it was too late;” she inquired as to how much
money she could withdraw without risking a Currency Transaction Report; and she
subsequently made a series of withdrawals for just under $10,000 from various
accounts. Ample evidence supported Marchiol’s conviction, and the exclusion of
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the guidelines did not taint the verdict. See Tennison v. Circus Circus Enters., Inc.,
244 F.3d 684, 688 (9th Cir. 2001).
2. Marchiol did not object at trial to the admission of a state court forfeiture
order finding probable cause to believe that the house she purchased for her client
constituted proceeds traceable to money laundering. Thus, we review for plain
error, which “is shown if the evidence was inadmissible and its admission affected
the outcome and . . . right to a fair trial.” United States v. Houser, 804 F.2d 565,
570 (9th Cir. 1986).
Here, the forfeiture order was admissible. It was found among Marchiol’s
personal files during a search of her home and corroborated witness testimony
about the property transaction. See Fed. R. Evid. 401. Nor did the order affect
Marchiol’s conviction in light of the testimonial and documentary evidence
establishing that she knew that the cash used to purchase the house came from drug
sales and then devised a scheme to hide the money’s illicit provenance. The
admission of the order was thus not plain error.
3. Because Marchiol neither contested joinder nor asked for the charges
against her to be severed at trial, we review these challenges for plain error. See
Fed. R. Crim. P. 52(b). Under this standard, Marchiol must show “that (1) there is
an error; (2) the error is clear or obvious, rather than subject to reasonable dispute;
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(3) the error affected the appellant’s substantial rights,” that is, that it “affected the
outcome of the [trial]; and (4) the error seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258,
262 (2010) (internal quotation marks and citations omitted).
Here, the questions of whether the charges were improperly joined or should
have been severed are “subject to reasonable dispute.” Id. In light of the district
court’s limiting instruction to the jury to consider the charges separately, and the
ample evidence of guilt, any error did not affect the outcome of Marchiol’s trial
and did not “seriously affect the fairness, integrity or public reputation of judicial
proceedings.” Id.
AFFIRMED.
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