United States v. Leyda Ada ( 2019 )

FILED
NOT FOR PUBLICATION
JUL 08 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10210
Plaintiff-Appellee, D.C. No.
1:12-cr-00030-RVM-2
v.
LEYDA I. ADA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, District Judge, Presiding
Argued and Submitted June 12, 2019
Honolulu, Hawaii
Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit
Judges.
Leyda Ada’s husband was convicted of embezzlement, money laundering,
and fraud for illegally obtaining over $1.7 million spanning a seven-year period of
time. Ada was allegedly involved in the scheme and was charged with conspiracy
to commit money laundering, money laundering, and perjury. A jury acquitted her
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
on the money laundering counts, but convicted her of perjury. The district court
sentenced Ada to 27 months incarceration by applying a cross-reference, United
States Sentencing Guideline (“U.S.S.G.”) § 2J1.3(c)(1), which allows for an
enhancement when the perjury furthers an underlying crime. Ada appeals arguing
that (a) the questions on the Criminal Justice Act (“CJA”) Form 23 were
fundamentally ambiguous and therefore her answers are not false; (b) the cross-
reference is not applicable to her situation and the evidence does not support its
application; and (c) the district court erred in not considering her request for a
downward departure based on family ties.1 We affirm Ada’s conviction and
sentence.
1. Ada has not shown that the questions on the CJA Form 23 are
fundamentally ambiguous. In United States v. Camper, 384 F.3d 1073, 1076 (9th
Cir. 2004), we held that a question is fundamentally ambiguous “when men of
ordinary intelligence cannot arrive at a mutual understanding of its meaning,” and
that “the existence of some ambiguity in a falsely answered question is generally
not inconsistent with a conviction of perjury.” (internal quotation marks omitted).
Ada answered “no” to the question “Have you any cash on hand or money in
1
The facts are familiar to the parties and are restated here only as
necessary to resolve the issues raised on appeal.
2
savings or checking accounts?” The evidence shows that police seized $4,000 in
cash from Ada’s underwear drawer during a search of her home and that she had
access to several bank accounts. In the context of a person who has been arrested
and presumably searched, Ada’s argument that “on hand” limited the question to
what she had on her person is not reasonable.
2. Ada has not shown that there was insufficient evidence to support her
conviction. A jury conviction must be affirmed if the evidence, viewed
in the light most favorable to the prosecution, is adequate to allow a rational trier of
fact to find the essential elements of the crime beyond a reasonable doubt. See
United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). Here, the
evidence of the $4,000 in Ada’s underwear drawer and her knowing access to bank
accounts is sufficient to support the jury’s verdict of perjury.
3. Ada has not shown that the cross-reference in U.S.S.G. § 2J1.3(c)(1) may
not be applied to her perjury conviction. Whether the cross-reference is applicable
as a matter of law is reviewed de novo. United States v. Gasca-Ruiz, 852 F.3d
1167, 1170 (9th Cir. 2017) (en banc). Although there appears to be no reported
case in which the cross-reference has been applied to a perjury charge arising from
answers on a CJA 23 Form, the subsection only requires that the perjury be made
“in respect to” a criminal offense. Ada has not offered any persuasive policy or
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legal argument for holding that, as a matter of law, the cross-reference does not
apply to her perjury.2
4. Ada also has not shown that the evidence in her case does not support the
application of the cross-reference to her perjury. Findings of historic facts in a
case—the who, what, when, where, why, etc.—are reviewed for clear error.
Gasca-Ruiz, 852 F.3d at 1170. We have held that perjury “in respect to” a criminal
offense as that term is used in § 2J1.3(c)(1) is where “the defendant knew or had
reason to know, at the time of his perjury, that his testimony concerned such a
criminal offense.” United States v. Leon-Reyes, 177 F.3d 816, 824 (9th Cir. 1999)
(quoting United States v. Rude, 88 F.3d 1538, 1543 (9th Cir. 1996)).
In Rude, we indicated that the district court when applying a cross-reference
for sentencing should make a finding that the defendant committed perjury “in
respect to” particular criminal offenses. Rude, 88 F.3d at 1543. Here, the district
court did so, finding that the perjury “was to avoid this conspiracy to commit
laundering, money laundering charges or to conceal her involvement,” and that
Ada “knew of the conspiracy and knew that the money in the drawer . . . as well as
2
We noted that Ada provided answers to the CJA Form after requesting
counsel. Ada did not argue that the government’s interpretation of the form’s
questions — as applying to the underlying offense rather than to Ada’s request for
court-appointed counsel—runs afoul of Miranda v. Arizona, 384 U.S. 346 (1966).
4
the accounts in the First Hawaiian Bank . . . were in existence and they were
products of a part of the criminal activity.” In light of the evidence of Ada’s
awareness of the money laundering scheme, and her use of the proceeds (such as
playing poker), Ada has not shown that the district court erred in applying the
cross-reference to her perjury conviction.
5. Ada has not shown that the district court erred in attributing to her more
than $1.5 million in laundered funds. The application of the guidelines to the facts
in the case are reviewed for abuse of discretion. Gasca-Ruiz, 852 F.3d at 1170–71.
We have held that “[i]n the context of sentencing, a district court is not limited to
offense conduct, but rather may consider all of the defendant’s ‘relevant conduct’
in calculating loss under § 2B1.1.” United States v. May, 706 F.3d 1209, 1212 (9th
Cir. 2013). Moreover, “the loss calculation need be only a reasonable estimate.”
United States v. Laurienti, 611 F.3d 530, 559 (9th Cir. 2010). The government
presented considerable evidence in an 11-day trial of Ada’s involvement in her
husband’s scheme of laundering money and fraud. Although the jury acquitted
Ada on the money laundering counts, the evidence supports a determination that
she was aware of the scheme and benefitted from it. Accordingly, Ada has not
shown that the district court abused its discretion in attributing more than $1.5
5
million to her despite her assertion that she did not know the scope of her
husband’s illegal scheme.3
6. Ada has not shown that the district court erred in declining her request for
a downward departure for family ties. U.S.S.G. § 5H1.6 allows for a departure for
family ties and responsibilities, but states that such a departure is discouraged. The
district court’s denial of such a departure is reviewed for an abuse of discretion.
Gasca-Ruiz, 852 F.3d at 1170. The district court acknowledged Ada’s request, and
explained that such a departure is disfavored. Ada has not offered any persuasive
reasons for a deviation from the general rule in her sentence.
Ada’s conviction and sentence are AFFIRMED.
3
We do not consider Ada’s arguments concerning an enhancement
based on “substantial interference with the administration of justice” under
U.S.S.G. § 2J1.3(b)(2) because, as counsel admitted at oral argument, Ada’s
sentence was not based on this subsection of the sentencing guidelines. Thus, the
possibility of such an enhancement would only come into play were we to vacate
Ada’s sentence, which we do not.
6