United States v. Milton Vandevort , 539 F. App'x 783 ( 2013 )

FILED
NOT FOR PUBLICATION AUG 29 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50454
Plaintiff - Appellee, D.C. No. 2:08-cr-01070-PSG-1
v.
MEMORANDUM*
MILTON LEE VANDEVORT, AKA Lee
Vandevort, AKA Leland W. Vandevort,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted May 6, 2013
Pasadena, California
Before: PAEZ and IKUTA, Circuit Judges, and SEEBORG, District Judge.**
Defendant Milton Lee Vandevort appeals his convictions and sentence for
false oath in bankruptcy (18 U.S.C. § 152(2)), fraudulent concealment of assets in
bankruptcy (18 U.S.C. § 152(1)), and unlawful monetary transactions in criminally
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Seeborg, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
derived property (18 U.S.C. § 1957). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm the convictions and sentence.
1. The district court did not fail to instruct the jury on an element of the
offense. The jury instructions tracked the text of 18 U.S.C. § 152(1), which we
have held is “quite easily comprehended.” United States v. Weinstein, 834 F.2d
1454, 1461 (9th Cir. 1987). Moreover, “the instructions as a whole” were not
“misleading or inadequate to guide the jury’s deliberation.” United States v. Hofus,
598 F.3d 1171, 1174 (2010). The jury was instructed that it could convict only on
interests that “belonged” to Vandevort and that were “in” his “property.” We
therefore conclude that the district court made no error because it did not misstate
or omit an element of the § 152(1) offense. United States v. Peterson, 538 F.3d
1064, 1070 (9th Cir. 2008). The district court did not abuse its discretion as to the
precise formulation of the instructions. United States v. Peppers, 697 F.3d 1217,
1220 (9th Cir. 2012), cert. denied, 133 S. Ct. 1477 (2013).
2. The operative statutes, 18 U.S.C. § 152 and 11 U.S.C. § 541, are not
unconstitutionally vague as applied to Vandevort. Here, the case law and
legislative history establish that the term “equitable interests” in 11 U.S.C. § 541 is
not impermissibly vague because (a) Congress intended a very broad definition of
property in the bankruptcy context, see United States v. Whiting Pools, Inc., 462
2
U.S. 198, 204-05 (1983); and (b) we have recognized that the “equitable or legal
interests” in the property of the estate defined in 11 U.S.C. § 541 are “created and
defined by state law.” Wilson v. Bill Barry Enterprises, Inc., 822 F.2d 859, 861
(9th Cir. 1987) (citing Butner v. United States, 440 U.S. 48, 55 (1979)). In the
relevant context, “equitable interest” is not beyond the understanding of a person
of ordinary intelligence. See Weinstein, 834 F.2d at 1461.
3. The district court did not abuse its discretion in excluding a portion of
Vandevort’s statement from his Section 341 hearing testimony. The district court
excluded statements “not offered into evidence by the government and not testified
to by defendant . . . as inadmissible hearsay.” Vandevort’s non-self-inculpatory
statement was inadmissible hearsay not subject to an exception. United States v.
Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (non-self-inculpatory statements are
inadmissible even if they were made contemporaneously with other
self-inculpatory statements), holding modified by United States v. Larson, 495 F.3d
1094 (9th Cir. 2007). The statement did not establish Vandevort’s state of mind
under Federal Rule of Evidence 803(3) because it lacked the indicia of reliability
of a present-sense impression. United States v. Ponticelli, 622 F.2d 985, 991 (9th
Cir. 1980), overruled on other grounds by United States v. De Bright, 730 F.2d
1255, 1259 (9th Cir. 1984) (en banc). Further, “[Federal Rule of Evidence 106]
3
does not compel admission of otherwise inadmissible hearsay evidence.” United
States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996) (internal quotation omitted).
4. Vandevort appeals the 16-level upward adjustment to his offense level based
on the intended loss of between $1 million and $2.5 million. U.S.S.G.
§2B1.1(b)(1)(I) (2005 version). The district court’s factual findings were not
clearly erroneous, and relying on the debts Vandevort sought to discharge was not
an error of law.
The only issue is the extent of the loss Vandevort intended to cause his
creditors. Under the Sentencing Guidelines, intended loss is “the pecuniary harm
that was intended to result from the offense; [including] intended pecuniary harm
that would have been impossible or unlikely to occur.” U.S.S.G. §2B1.1,
Application Note 3(A)(ii) (2005). The district court properly applied this definition
of intended loss in determining Vandevort’s advisory sentencing guidelines range.
Vandevort argues that loss should be limited to the value of his concealed
assets because it was not possible for him to have intended loss beyond that value.
This argument was considered and rejected in United States v. Bussell, 504 F.3d
956, 962 (9th Cir. 2007), where we upheld the district court’s determination that
the intended loss equaled the amount of debt sought to be discharged in the
bankruptcy because that calculation reflected “economic realities.” That same
4
principle applies here. To prevail under the abuse of discretion standard, Vandevort
would have to show that the “economic realities” of this case distinguished it from
those in Bussell. This he cannot do: the evidence in this case shows that his
fraudulent activities go beyond “solely . . . failing to disclose a concealed asset on
the bankruptcy petition.” Id.AFFIRMED.
5