United States v. Kevin Kyes ( 2020 )

FILED
NOT FOR PUBLICATION
JAN 8 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10393
Plaintiff-Appellee, D.C. No. 3:16-cr-00250-SI-2
v.
MEMORANDUM*
KEVIN KYES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted December 2, 2019**
San Francisco, California
Before: SILER,*** BYBEE, and R. NELSON, Circuit Judges.
Kevin Kyes appeals his conviction for several counts of wire fraud, money
laundering, and conspiracy. We affirm.
*
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 Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Mr. Kyes contends that the district court improperly permitted bad-acts
evidence and prejudicially denied a continuance of trial. Specifically, Mr. Kyes
asserts that the district court erred in allowing a stipulation to be read to the jury
that Mr. Kyes and his co-conspirator owed money to several named individuals.
He also argues that the district court should have granted a continuance because
Mr. Kyes was experiencing an episode of ill health that made it difficult for him to
meaningfully participate at trial. We review both issues for abuse of discretion.
United States v. Parks, 285 F.3d 1133, 1141 (9th Cir. 2002); United States v.
LeMay, 260 F.3d 1018, 1024 (9th Cir. 2001); United States v. Garrett, 179 F.3d
1143, 1144–45 (9th Cir. 1999).
1. Mr. Kyes argues that reading the stipulation regarding his owing debts to
several individuals violated Federal Rule of Evidence 404(b) by impermissibly
introducing prior-bad-acts evidence. He also asserts that the stipulation was
unduly prejudicial under Rule 403.
A simple reading of the stipulation, however, fails to show anything harmful
or unduly prejudicial to Mr. Kyes. The stipulation simply states that Mr. Kyes, his
co-conspirator, and entities controlled by them owed money to named individuals.
Nothing in the stipulation implies that Mr. Kyes or his co-conspirator had
attempted to defraud these individuals. And Mr. Kyes points to no case holding
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that simply being indebted to others constitutes a prior bad act warranting
exclusion under Rule 404(b). Meanwhile, establishing that Mr. Kyes and his
affiliates owed money to the named individuals potentially provided proof of
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident” in a case involving money laundering and wire fraud.
Fed. R. Evid. 404(b)(2). For the same reason, such evidence is highly
relevant—meaning there is no apparent abuse of discretion under Rule 403. And
even assuming that allowing this stipulation was erroneous, Mr. Kyes all but
concedes that the other evidence in this case was overwhelming. Thus, the
admission of the stipulation would be nothing more than harmless error. See
United States v. Yazzie, 59 F.3d 807, 814 (9th Cir. 1995).
2. Mr. Kyes next contends that the district court abused its discretion in not
granting a continuance of trial to allow Mr. Kyes to recover from a health incident.
On the morning trial was scheduled to begin, Mr. Kyes checked himself into a
hospital complaining of chest pain. He was discharged from the hospital by 8:30
that morning, but rather than going to court, he drove to see his primary-care
physician. Mr. Kyes then received a doctor’s note saying that he should be
excused from court for seven to ten days.
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Mr. Kyes made no concerted effort to contact the district court after his
discharge from the hospital. The district court also noted that Mr. Kyes had told
hospital staff that he had an appointment scheduled with his primary-care
physician that day—even though trial was scheduled to commence. As for his
health, the district court found that there was no need to continue the trial date.
The court found that Mr. Kyes was taking his medication and that he had been able
to participate in trial without any apparent problem. The court then highlighted
how a continuance would significantly inconvenience the government.
Specifically, the government’s three main witnesses had flown to California from
Japan and a Japanese interpreter had been retained for the week. Further still, a
forty-nine person venire had been assembled and the district judge’s schedule
would have likely precluded trial for at least another eight weeks.
Nothing in the record suggests an abuse of discretion. The district court
specifically noted that Mr. Kyes exhibited no signs of physical distress during trial
and that he was able to assist in his defense. Thus, denying the motion for
continuance resulted in no apparent prejudice to Mr. Kyes. The court also
emphasized that Mr. Kyes had not been diligent in contacting the court about a
health issue which—considering his discharge from the hospital—did not appear
urgent. Meanwhile, the court found that the government would be harmed by a
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continuance and also noted the inconvenience to the court of postponing a long-
planned trial. Given the district court’s weighing of these factors, no abuse of
discretion is apparent. See United States v. Flynt, 756 F.2d 1352, 1359–62 (9th
Cir. 1985).
AFFIRMED.
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